Opinion
No. 3499.
June 7, 1928. Rehearing Denied June 14, 1928.
Appeal from Gregg County Court; D. S. Meredith, Jr., Judge.
Action in a justice court by J. B. Buckingham against J. A. Eitel and others. Judgment was rendered for plaintiff, and defendants brought certiorari. On trial in the county court, judgment was rendered for defendants, and plaintiff appeals. Reversed and remanded, with instructions.
Appellant, J. B. Buckingham, sued appellees J. A. Eitel, T. B. Fears, and G. A. Hughes in a justice court of Gregg county, as the makers of a promissory note, and on March 26, 1923, recovered judgment against them for $174.57. The judgment was by default so far as it was against Eitel; but the other defendants, acting by their attorney, W. R. Hughes, had filed an answer (consisting of a "general denial" only) to the suit, and it appears from recitals in the judgment that the court heard "evidence and the argument of counsel" before he rendered same. June 9, 1923, appellee Fears applied to the county judge of Gregg county for a writ of certiorari requiring the justice who tried the case to make and certify a copy of the entries in the cause on his docket and transmit the same, with the papers in his possession, to the county court of said county. In his application for the writ, Fears alleged that, if he was liable on the note sued upon, it was as a surety; that the judgment in the justice court was rendered without notice to him "of the date of the hearing and without his presence in court"; that had he been notified of said date he would have been present at the trial, and "under (quoting) his answer filed in the cause" would have "offered evidence (quoting further) he verily believes would be a defense to the suit as against him," and which would have shown "the inequity (quoting still further) of the judgment against him and the consequent loss and damage to him resulting"; that he was deprived of an opportunity to offer such evidence and make such showing "through lack of said notice and without any fault of him"; and that, if the suit was granted, at the trial in the county court he could and would produce evidence which would "afford the court aid and assistance (quoting) in rendering judgment and substantially alter said judgment now of record as to correct the error and injustice now existing." The application contained no obligation suggesting a reason why the applicant was not bound by the general rule imputing to parties to a lawsuit knowledge of the time of the trial thereof. It contained no allegation to the contrary of the recital in the judgment that the applicant was represented by his attorney at the trial. It contained no allegation showing what the testimony heard at the trial in the justice court was, nor the nature of the testimony not adduced, and which the applicant alleged he could and would have adduced had he been present at the trial, and it contained no allegation of any fact showing injustice to the appellant in the rendition of the judgment against him. The only thing in the record sent to this court showing action by the county judge on the application is a copy of a notation on his docket as follows: "6/9. Bond filed and writ of certiorari granted." There is nothing in said record showing that such a writ was ever issued, but it appears that a transcript of proceedings in the justice court was filed in the county court September 11, 1923. On the same day, to wit, September 11, 1923, appellant filed in said county court a motion to dismiss the application for the writ of certiorari on the ground, among others, that it did not appear from his application that applicant was entitled to same, and on the ground that the county judge to whom the application was addressed was disqualified to act thereon. "as he was of counsel for the defendants in the lower court." September 15, 1924, attorneys representing appellant, to wit, Campbell Campbell, and an attorney representing appellee Fears, to wit, E. M. Bramlette, agreed in writing that W. R. Hughes, then judge of the county court of Gregg county was disqualified to try the case, "for the reason that he was of counsel for the defendants in the lower court," and agreed further that same would be tried by Ras Young, an attorney at the Gregg county bar. Acting as judge as agreed upon, Young, on September 26, 1924, overruled the motion to dismiss the certiorari, above referred to. Later, to wit, on July 25. 1927, appellant filed another motion to dismiss the writ, which was overruled the day it was filed by D. S. Meredith, Jr., who, it seems, had succeeded W. R. Hughes as county judge. The case was tried by the court without a jury, and judgment was rendered denying appellant a recovery of anything and in appellees' favor for costs.
Campbell Campbell, of Longview, for appellant.
E. M. Bramlette, of Longview, for appellees.
By the terms of the statute in force at the time appellee Fears applied for the writ of certiorari (article 746, Vernon's Sayles' Statutes) he was not entitled to the writ unless he had in his application therefor stated facts showing "either the justice of the peace had not jurisdiction, or that injustice was done to the applicant by the final determination of the suit or proceeding, and that such injustice was not caused by his own inexcusable neglect." He stated no such facts in his application, and he therefore was not entitled to have the writ granted; and, it having been granted nevertheless, appellant, on motion made at the term to which the writ was returnable, was entitled to have it dismissed. Article 754, Vernon's Sayles' Statutes; Brown v. Sphor (Tex.Sup.) 16 S.W. 866. At that term appellant made such a motion, based on that ground among others. As appears in the statement above, the motion was not acted on until September 26, 1924, which was more than a year after it was filed. We have found nothing in the record suggesting a reason why the motion was overruled, notwithstanding the application for the writ was plainly insufficient, unless the delay of a year or longer in having it acted upon by the court was such a reason. It appeared that the county judge in office at the time the motion was filed and for longer than a year thereafter was disqualified to act thereon because he was of counsel for appellees in the justice court. If mere delay, without excuse therefor, would have been a reason for overruling the motion, certainly delay excused as that in question here was not such a reason. Crenshaw v. Home Lumber Co. (Tex.Civ.App.) 296 S.W. 342. In the case cited, the court said:
"It has been generally held that it was mandatory that the motion to dismiss must be made at the first term of the court to which it is returnable, or it will come too late, but we have found no decision holding that it is mandatory that it should also be acted on at the first term. The motion having been filed at the first term of the court to which the writ was returnable, and it being clear that it was urged at the first opportunity available to the mover, it was not waived."
It is clear, we think, that the motion should have been sustained on the ground thereof stated above. It is also clear, we think, it should have been sustained on another ground thereof, to wit, that the judge who granted the writ was disqualified to do so because, as appears in the record, he was of counsel for appellees in the justice court. A disqualified judge cannot grant a writ of certiorari; and, if he undertakes to grant such a writ, his act is void. Fellrath v. Gilder, 1 White W. Civ.Cas.Ct.App. § 1060; Baldwin v. McMillan, 1 White W. Civ.Cas.Ct.App. § 515; Gaston v. Parker, 1 White W. Civ.Cas.Ct.App. § 106; Frazier v. Coombs (Tex.Civ.App.) 236 S.W. 773. It is the granting of the writ and making the bond therefor that confers jurisdiction on the county court. Beauchamp v. Schiff, 3 Willson, Civ.Cas.Ct.App. § 170. It follows, a writ never having been granted by a judge or court authorized to grant it, the county court was without power to hear and determine the cause, and should have dismissed it.
The judgment will be reversed, and the cause will be remanded to the county court, with instructions to dismiss it, at the same time directing the justice of the peace to proceed with the execution of the judgment of his court as provided in article 955, Revised Statutes of 1925.