Von Koehring v. Schneider

12 Citing cases

  1. Gould v. Sanders

    60 Tex. Civ. App. 410 (Tex. Civ. App. 1910)   Cited 5 times
    In Gould v. Sanders, 60 Tex. Civ. App. 410, 127 S.W. 899, it is held that in an application for certiorari to a justice court, the petition must either state all the evidence, or show that a material error occurred in the proceedings, or that applicant has not been able to avail himself of a legitimate prosecution or defense by no fault of his own, but one or all of these causes must be set forth with sufficient detail to show a prima facie case entitling petitioner to another rehearing.

    — The affidavit for certiorari must state facts showing that the justice of the peace who rendered the judgment did not have jurisdiction over the person of the defendant or subject matter of the suit, or that injustice had been done him by the judgment and that such injustice was not due to his own inexcusable neglect. Von Koehring v. Schneider, 24 Texas Civ. App. 469[ 24 Tex. Civ. App. 469]; Nelson v. Hart, 23 S.W. 832; Miner v. Goser, 1 W. W., par. 73; Hail v. Magee, 1 W. W., 853; Quinn v. Elam, 1 W. W., 1108; Burton v. Hale, 1 W. W., 1251; Wilson v. Guffin, 1 W. W., 1313; Houston T. C. Ry. Co. v. Simon, 2 W. W., par. 99; Galveston, H. S. A. Ry. Co. v. Jackson, 2 W. W., par. 174; Gulf, C. S. F. Ry. Co. v. Odom, 4 W. W., par. 106; Rev. Stats., art. 358; White Dental Co. v. Hertzberg, 92 Tex. 528; Gholston v. Ramey, 30 S.W. 713. The judgment admitted in evidence being authenticated as prescribed by the Act of Congress was admissible in evidence without further proof of the jurisdiction of the court, and it devolved upon defendant to allege and prove that the court which rendered it did not have jurisdiction to do so. Mayes v. Magill, 48 Texas Civ. App. 548[ 48 Tex. Civ. App. 548]; Texas N. 0. Ry. Co. v. Clippenger, 47 Texas Civ. App. 510[ 47 Tex. Civ. App. 510]; Mexican Cent. Ry. Co. v. Mitten, 13 Texas Civ. App. 653[ 13 Tex. Civ. App.

  2. Huebsch Mfg. Co. v. Coleman

    113 S.W.2d 639 (Tex. Civ. App. 1938)   Cited 7 times

    The failure to take advantage of the former remedy does not preclude the latter. In further support of this proposition, we find these additional authorities: Woodley et al. v. Gulf, C. S. F. Ry. Co., Tex. Civ. App. 20 S.W.2d 842; Lanning v. Yarbrough, Tex. Civ. App. 35 S.W.2d 211; Ray v. Parsons, 14 Tex. 370; Ward v. McRimmond, 12 Tex. 314; Poag v. Rowe, 16 Tex. 590; Von Koehring v. Schneider, 24 Tex. Civ. App. 469; 60 S.W. 277; Friend v. Boren, 43 Tex. Civ. App. 33, 95 S.W. 711; Hail v. Magale, 1 White W. Civ.Cas.Ct.App. § 852; Northside Chevrolet Co. et al. v. Nolen, Tex. Civ. App. 87 S.W.2d 520. Since it is our opinion that the court erred in dismissing the certiorari on the theory that the appellant was negligent in not prosecuting a direct appeal, the only question left for our determination is whether or not an injustice was done to the applicant.

  3. Heaton v. Buhler

    60 Tex. Civ. App. 423 (Tex. Civ. App. 1910)   Cited 7 times

    rt, provided due application for the writ of certiorari be made to and allowed by such District Court or the judge thereof, and provided the applicant enter into bond in such sum as may be required by the district judge. Franks v. Chapman, 60 Tex. 46; Ray v. Parsons, 14 Tex. 370 [ 14 Tex. 370]; Poag v. Rowe, 16 Tex. 591; Newson v. Chrisman, 9 Tex. 113; Moore v. Hardison, 10 Tex. 470; Flanagan v. Pierce, 27 Tex. 78; Heath v. Layne, 62 Tex. 690; Buchanan v. Bilger, 64 Tex. 591; Linch v. Broad, 70 Tex. 94; Williams v. Steele, 101 Tex. 382; Adoue v. Gonzales, 22 Texas Civ. App. 73[ 22 Tex. Civ. App. 73]; Friend v. Boren, 43 Texas Civ. App. 33[ 43 Tex. Civ. App. 33]; Wipff v. Heder, 6 Texas Civ. App. 685[ 6 Tex. Civ. App. 685]; Kalteyer v. Wipff, 92 Tex. 673; Bloom v. Oliver, 56 Texas Civ. App. 391[ 56 Tex. Civ. App. 391]; Pearce v. Leitch, 43 Texas Civ. App. 398[ 43 Tex. Civ. App. 398]; Miers v. Betterton, 18 Texas Civ. App. 430[ 18 Tex. Civ. App. 430]; Harbison v. Harbison, 56 S.W. 1006; Von Koehring v. Schneider, 24 Texas Civ. App. 469[ 24 Tex. Civ. App. 469]. An application for the probate of an alleged will is fatally defective and will not support a decree probating same when it contains no averment to the effect that the testator was of sound mind at the time of the execution of said instrument.

  4. McBurnett v. Lampkin

    45 Tex. Civ. App. 567 (Tex. Civ. App. 1907)   Cited 8 times

    Certiorari will not lie in order to permit a party to avail himself of a defense which he could have urged in the Justice's Court, and which he neglected to do. (White v. Casey, 25 Tex. 555; Peabody v. Buentillo, 18 Tex. 313 [ 18 Tex. 313]; Clark v. Hutton, supra; Von Koehring v. Schneider, 24 Texas Civ. App. 469[ 24 Tex. Civ. App. 469], s. c., 60 S.W. Rep., 277.) 4.

  5. Ex parte Martinez

    66 Tex. Crim. 1 (Tex. Crim. App. 1912)   Cited 7 times

    Returns and affidavits are proper to be considered on hearing for certiorari. Aycock v. Williams, 18 Tex. 393; Jones v. Nold, 22 Tex. 379 [ 22 Tex. 379]; Kechring v. Schneider, 60 S.W. 277; Constitution, article 5, section 5. Under this last statement, that is, in regard to returns and affidavits being proper to be considered on hearing for certiorari, will say that this is common practice in this court to perfect records or to bring up matters that are omitted parts of the records in court below, but omitted from transcripts here, and this writ of certiorari can be made available whether the case is one on habeas corpus or on appeal, and it is the universal practice in this State whenever it becomes necessary to do so, to use writ of habeas corpus and writ of certiorari conjointly.

  6. Cozart v. Buck

    110 S.W.2d 962 (Tex. Civ. App. 1937)

    It is not essential that the applicant should show why he did not appeal. 26 Tex.Jur. p. 890; B. E. Hail v. J. F. Magale, 1 White W. Civ.Cas.Ct.App. § 852; Quinn Browser v. Elam, 1 White W. Civ.Cas.Ct.App. § 1108; Von Koehring v. Schneider, 24 Tex. Civ. App. 469, 60 S.W. 277; Lucas et al. v. Harrison et al. (Tex.Civ.App.) 139 S.W. 659; Lanning v. Yarbrough (Tex.Civ.App.) 35 S.W.2d 211; Northside Chevrolet Co. et al. v. Nolen (Tex.Civ.App.) 67 S.W.2d 520. Reversed and remanded.

  7. Lanning v. Yarbrough

    35 S.W.2d 211 (Tex. Civ. App. 1931)   Cited 6 times

    Appellant's right to have the judgment reviewed by certiorari was not dependent upon a showing of why he did not appeal. Woodley v. G., C. S. F. Ry. Co. (Tex.Civ.App.) 20 S.W.2d 842; Lucas v. Harrison (Tex.Civ.App.) 139 S.W. 659; Von Koehring v. Schneider, 24 Tex. Civ. App. 469, 60 S.W. 277. Other facts related to the allegation that execution was issued the same day as the judgment was rendered.

  8. Parker Motor Co. v. Hamilton

    9 S.W.2d 426 (Tex. Civ. App. 1928)   Cited 3 times

    As against the motion to dismiss, the allegations of the application must be taken as true, and can be neither contradicted nor aided by evidence aliunde. Von Koehring v. Schneider, 24 Tex. Civ. App. 469, 60 S.W. 277; Odom v. Carmona (Tex.Civ.App.) 83 S.W. 1100; Gould v. Sanders, 60 Tex. Civ. App. 410, 127 S.W. 899; Poole v. Pierce-Fordyce Oil Ass'n, supra. While under article 2223, Revised Civil Statutes, a Judgment may be rendered against a partnership, as construed, this article does not recognize a partnership as a distinct and separate entity capable of suing and being sued, but only as a status that can neither sue nor be sued.

  9. Coleman v. Happel

    3 S.W.2d 847 (Tex. Civ. App. 1928)

    Appellee was advised by the writ of garnishment that appellant was suing Burns for an amount due for work and labor done on the house of appellee, and he was summoned to appear and answer under oath what, if any, amount he was indebted to Burns, etc. The allegations in the application for the writ must be taken as true (Van Koehring v. Schneider, 24 Tex. Civ. App. 469, 60 S.W. 277), and therefore it appears from the recitals in the application that an injustice was done to applicant in rendering judgment against him for the debt of another when he was neither indebted to nor had effects of the other in his possession with which to satisfy said judgment. The statute, however, provides that the application must show that the injustice was not caused by the inexcusable neglect of the applicant.

  10. A. B. Richards Medicine v. Johnson

    267 S.W. 1067 (Tex. Civ. App. 1925)   Cited 6 times

    Further, in the same opinion, Judge Key said: "Appeal and certiorari are cumulative remedies, and in order to obtain the benefit of the latter it is not necessary to assign any excuse for not taking an appeal — [citing 14 Tex. 370; 16 Tex. 590; 60 S.W. 277; 93 S.W. 711.]" The statutes of this state regulating the filing of pleas of privilege, the trial of contests arising thereunder, and the right of appeal from an order sustaining or overruling the plea (articles 1831 to 1833, incl., also articles 1903 and 2308) apply to and regulate the proceedings of justice courts.