We think it appeared that the county court was without power to hear and determine the cause, and therefore that the certiorari should have been dismissed. The jurisdiction of that court was appellate only and could not attach until the cause was finally disposed of in the justice court. The effect of the order of the justice of the peace made January 29, setting aside the judgment he rendered January 26, was to leave the case standing in his court for trial anew there, and it was not shown that he ever set aside the order or tried the cause anew. The contention is that the order setting aside the judgment was made without notice to appellant, and for that reason was void. As supporting the contention appellant refers to article 2374, Vernon's Statutes, and to Aycock v. Williams, 18 Tex. 393, and Smith v. Carroll, 28 Tex. Civ. App. 330,66 S.W. 863, construing same. The article of the statutes specified is as follows:
"Any justice of the peace shall have power, at any time within ten days after the rendition of a judgment by default or of dismissal, to set aside such judgment, on motion in writing, for good cause shown supported by affidavit. Notice of such motion shall be given to the opposite party at least one full day prior to the hearing thereof."
It seems to have been held in the cases cited that the effect of the statute was to deny to a justice of the peace a right to grant a new trial in the absence of a written motion therefor and notice thereof to the opposite party. But a Court of Civil Appeals having determined in Raley v. Sweeney, 24 Tex. Civ. App. 620, 60 S.W. 573, that such was not the effect of the statute, and that a justice of the peace had power at any time within ten days after he rendered a judgment to set same aside, another Court of Civil Appeals certified the question made by the conflict to the Supreme Court, which determined it as the Court of Civil Appeals did in Raley v. Sweeney, thereby, in effect, overruling Aycock v. Williams and Smith v. Carroll. Cohen v. Moore, 101 Tex. 45, 104 S.W. 1053; Id. (Tex.Civ.App.) 103 S.W. 422.
The judgment will be reversed and the cause will be remanded to the county court, with instructions to dismiss the certiorari. *Page 913