Opinion
No. 3947.
February 19, 1931.
Error from District Court, Red River County; R. J. Williams, Judge.
Suit by E. B. Chambers and another against Wyatt J. Baldwin. Judgment for plaintiffs, and defendant brings error.
Affirmed.
Before February 21, 1925, when the act of the Legislature creating the One Hundred and Second judicial district (chapter 16, General Laws 1925) took effect, Red River county was in the Sixth judicial district, then composed of it (Red River county) and Lamar and Fannin counties. By force of said act, Red River county became a part of said One Hundred and Second judicial district, composed of it (Red River county) and Bowie county, and ceased to be a part of said Sixth judicial district. In the act referred to it was declared that the district attorney of said Sixth judicial district should "prosecute all criminal cases in the One Hundred and Second Judicial District Court while sitting in Red River County until the expiration of his present term of office and thereafter the county attorney of Red River County shall prosecute all criminal cases in the district court of the One Hundred and Second Judicial District and shall represent the State in all matters wherein the State is a party and shall receive such fees for his services as is now, or may be hereafter provided by General Laws of the State of Texas." Section 8. At the time stated, plaintiff in error, Wyatt J. Baldwin, who resided in Lamar county, was the district attorney of the Sixth judicial district, and defendant in error E. B. Chambers was the county attorney of Red River county. This suit by said Chambers and said Red River county, as plaintiffs, against said Baldwin, as defendant, was to recover $1,192, the aggregate, it was alleged, of fees Chambers as such county attorney was entitled to receive of the state for prosecuting criminal cases in said One Hundred and Second district court while sitting in Red River county and which, instead, were paid by the state to said Baldwin, district attorney of said Sixth judicial district. It was alleged that Chambers as county attorney was entitled to retain $2,400, and in addition thereto one-fourth of any amount in excess of $2,400, received by him as fees of the office he held, and alleged further that the $1,192 sued for were fees in excess of said $2,400, and that one-fourth thereof belonged to Chambers and the remaining three-fourths thereof to Red River county. The defense urged by Baldwin in his answer to the suit was that the $1,192 was paid to him by the state on accounts rendered by him as district attorney of the Sixth judicial district, duly approved by the judges of that district, in orders duly entered, and which, it was alleged, operated as judgments not subject to attack by defendants in error. The trial was to the court without a jury, and he found, among other things, that in May, 1925, Chambers commenced suit against Baldwin to establish a right he claimed as such county attorney to represent the state in criminal cases in said district court and receive the fees therefor, and to restrain Baldwin as such district attorney from representing the state in such cases. The court found, further, that the $1,192 sued for was the amount of fees received by Baldwin from the state for representing it in such criminal cases from the time said suit was commenced to April 28, 1926, when it was finally determined that Chambers and not Baldwin was entitled to so represent the state. Chambers v. Baldwin (Tex.Com.App.) 282 S.W. 793. The court found, further, that during the time specified Chambers was ready, willing, and able to perform the services in question and would have performed same "had it not been (quoting) for the acts and conduct on the part of said Baldwin."
Edgar Wright, of Paris, for plaintiff in error.
Robbins Bailey, of Clarksville, for defendants in error.
The effect of the holding of the Commission of Appeals in Chambers v. Baldwin, 282 S.W. 793, that the provision set out in the statement above of the act of the Legislature creating the One Hundred and Second judicial district was void because unconstitutional, and that defendant in error Chambers and not plaintiff in error, Baldwin, was entitled to represent the state in the prosecution of criminal cases in the district court of Red River county, was to determine that said Chambers, as county attorney of Red River county, was entitled to demand and receive the fees paid by the state to Baldwin, as district attorney of the Sixth judicial district, for prosecuting such cases. Appellant's contention to the contrary we think is not tenable on any of the grounds urged by him. It conclusively appeared from the evidence heard at the trial that such fees aggregated $1,192, the amount of the judgment in appellee's favor. The admission in evidence of the certified (photostatic) copies of the accounts and treasury warrants covering the fees in question issued to Baldwin was authorized by article 3722, R.S. 1925. Zettlemeyer v. Shuler, 52 Tex. Civ. App. 648, 115 S.W. 78, 79. On the case made by the record we do not think any other judgment than the one rendered properly could have been rendered by the court below.
The judgment is affirmed.