(concurring). The writ of certiorari is not a writ of right, but it lies in the sound judicial discretion of the court to grant it, as justice may require.
In the case before us, the judgment in personam which the petitioner seeks to set aside was rendered upon constructive service, and is void; the defendant not having appeared in the action. The judgment sustaining the attachment and ordering the land levied upon sold is alleged by the petitioner to be void, obviously for the reason that the return of the sheriff, upon which it was in part based, was defective. The return indorsed upon the order of attachment is as follows: “This came to my hands at 3 o’clock p. m., September 30, 1897. W. A. Holcomb, sheriff. I have this, the 7th day of July, 1897, duly served the within by levying upon the following described land, to-wit, northwest quarter of section 27, township 4 north, range 8 west. Said party is a nonresident, living in Texas. W. A. Holcomb, sheriff, by J. H. Bryant, deputy sheriff.” The return shows that the land was levied upon, but does not state in what manner. It is true that petitioner avers that there “was, in point of fact and law, no levy at all.” But this was clearly a conclusion of law as to the sufficiency of the return. The allegation follows after a statement of what was done, and is clearly based upon the facts stated before the averment.
He does not deny that there was any seizure, and, if there was, does not show how it was made, or allege that the return of the sheriff was false. The petition, in this respect, to say the least of it, is uncertain, deficient, and unsatisfactory. It is also wholly deficient because it wholly fails to show that the alleged debt upon which the judgment was based did not exist, was illegal, unjust, paid, discharged, or barred by the statute of .limitations, or that he had any defense against it, or that the petitioner was without adequate remedy. It is wholly insufficient to call forth the exercise of the sound judicial discretion of any court in the granting of the writ of certiorari as to the judgment against the land attached, and in this respect is not aided by the record or evidence. I therefore concur in the judgment of the court.