On Motion for Rehearing.
[7] Appellees contend that we erred in not holding that it was the duty of appellant to call the attention of the court to the plea at the December term, and, if the business of the court would not fiermit a hearing thereon, to procure the entry of an order continuing the case without prejudice to such plea. They cite Aldridge v. Webb & Hill, 92 Tex. 122, 46 S. W. 224, which sustains such contention, and we believe it logically follows that a person who presents a plea at a different time than that fixed by the statutes and the rule referred to in said case has the burden of showing that his plea has not been abandoned by his previous neglect. In this case there is nothing to show that the plea was filed during the December term, except the qualification to a bill of exceptions, which cannot bp considered.
[8, 9] It is now also contended that the plea was waived by the failure, to be present on January 22, 1917, and present the same and introduce evidence to support the allegations thereof. It is true that the allegations of the petition for certiorari must be taken as true; and the contention is made that the petition, in showing a reliance by the httorney for appellant upon certain customs and usages with respect to continuances of pleas of privilege and the trial of causes in this particular justice’s court, discloses facts showing negligence on the part of the attorney. This might be admitted, and yet it would not be conclusive, for it appears that certiorari is a remedy to which the strict rules applicable in case of appeal do not necessarily apply. The applicant for the writ under the peculiar wording of the statute is not chargeable with - the negligence of his attorney. Lucas v. Harrison, 139 S. W. 659. The appellant showed that there was injustice to him in overruling his plea of privilege; that is, that the facts, if properly presented, required the sustaining of such plea. He also showed that he promptly employed an attorney and gave him the necessary information do enable the attorney to protect his rights, and that he caused a plea of privilege to be filed. The petition discloses that the failure to present the plea and sustain it by evidence was not caused by appellant’s own inexcusable neglect. The .petition, therefore, was not defective, and if the petition was sufficient as against a motion to dismiss, it appears to us it cannot be held to show an abandonment or waiver of the plea of privilege. To so hold would be to negative the right to resort to the remedy by certiorari to revise rulings on pleas of privilege, or to establish one rule as to petitions relating to pleas of privilege and another as to petitions relating to trials on the merits. The statute excusing petitioner, if the neglect be not his own, but that of his attorney, may be a bad one, but that would not justify the courts in imputing to the petitioner the negligence of his attorney.
We conclude the motion for rehearing should be overruled.