Texas Farm Bureau Cotton Ass'n v. Lennox

• Decision Date: 19 July 1927
• Docket Number: (No. 7700.)
• Citation: 297 S.W. 743
• Parties: TEXAS FARM BUREAU COTTON ASS'N v. LENNOX et al.
• Court: Texas Supreme Court

297 S.W. 743

TEXAS FARM BUREAU COTTON ASS'N v. LENNOX et al.

(No. 7700.)

Supreme Court of Texas.

July 19, 1927.

Application for temporary injunction by the Texas Farm Bureau Cotton Association against H. H. and C. D. Lennox and for temporary writ of prohibition against Hon. G. P. Blackburn. Writs to issue.

See, also, 296 S. W. 325, 328.

C. K. Bullard, of Dallas, and Long & Wortham, of Paris, for relator.

Lennox & Lennox, of Clarksville, and King, Mahaffey & Wheeler, of Texarkana, for respondents.

CURETON, C. J.

The relator, the Texas Farm Bureau Cotton Association, on July 6, 1927, filed in the Supreme Court a motion for leave to file a petition for mandamus against the Honorable R. J. Williams, judge of the 102d judicial district. The purpose of the mandamus is to require Judge Williams to proceed to trial in a case pending in the district court for Red River county, 102d district, styled H. H. and C. D. Lennox v. Texas Farm Bureau Cotton Association. The suit has been pending in that court for a number of years, has twice been before the Courts of Civil Appeals, and once before the Supreme Court. 257 S. W. 935; 283 S. W. 619; Texas Writs of Error Supp. List No. 1, 294 S. W. xvi. After the last reversal of the case, to wit, on or about the ______ day of June, 1927, the plaintiffs therein. H. H. and C. D. Lennox, who are made parties respondent in the present action, filed an application and motion in the trial court, asking that Judge Williams, the presiding judge of that court, hold himself disqualified to try the suit. On or about the 2d day of July, 1927, this motion came on for consideration by Judge Williams, and, by an order entered upon the minutes of his court, the motion for disqualification was sustained, whereupon Judge Williams certified his disqualification to the Honorable Barry Miller, acting Governor of the state, who appointed or designated the Honorable G. P. Blackburn, judge of the Sixth judicial district of Lamar county, to try the cause. Judge Blackburn set the case for trial on July 11, 1927, whereupon the motion for leave to file the petition for mandamus was filed in the Supreme Court, and application made to the writer of this opinion for a temporary injunction restraining H. H. and C. D. Lennox, their agents and attorneys, from taking any further action regarding the trial of cause No. 13038, styled H. H. and C. D. Lennox v. Texas Farm Bureau Cotton Association, pending in the 102d district court of Red River county, and for writ of prohibition to Judge Blackburn, commanding him to refrain from trying said cause, pending the action of the Supreme Court on the application for writ of mandamus.

When the application for temporary injunction was presented, the writer granted a restraining order, and set the application for temporary injunction for hearing in chambers on July 16, 1927. This hearing was had, at which counsel for the relator and the respondents H. H. and C. D. Lennox appeared, and the case was presented and argued in proper form.

The grounds of disqualification found to exist by Judge Williams were that he was related within the third degree to two members of the Texas Farm Bureau Cotton Association, and that by reason thereof he concluded that they were parties in interest and parties by representation to the suit, and that therefore, under the Constitution and laws of the state, he (Judge Williams) was disqualified to try the case. His certificate to the acting Governor states clearly the grounds of the disqualification, as follows:

"To His Excellency, The Honorable Barry Miller, Acting Governor, Sir:

"I, R. J. Williams, judge of the 102d judicial district of Texas, do hereby find and certify that I am related by affinity within the third degree, to George W. Daniel (he having married my sister), and J. C. Scaff (I having married his sister, Fannie Scaff), and that both said relatives are members of the defendant association, and that the said George W. Daniel is and was a grower of cotton in Texas prior to July 1, 1921, and that each of said named parties signed a contract generally similar to the one attached to the defendant's answer and cross-bill upon which the defendant seeks to recover about $47,000 for an alleged breach thereof, and that the one signed by the said George W. Daniel was prior to the incorporation of the defendant association, which was incorporated July 23, 1921, and that paragraph fifteen of the marketing contract embodied in the association agreement reads as follows:

"`15. This agreement is one of a series generally similar in terms, comprising with all such agreements, signed by individual growers, or otherwise, one single contract between the association and the said growers, mutually and individually obligated under all of the terms thereof. The association shall be deemed to be acting in its own name, for all such growers, in any action or legal proceedings on or arising out of this contract.'

"I further find that the defendant association is a mutual association without capital stock and that its assets belong to its members.

"I therefore conclude and hold that George W. Daniel and J. C. Scaff are `parties' in interest and `parties' by representation to the above and foregoing suit within the meaning of the Constitution and laws of Texas, and that I am disqualified to hear and try the aforesaid suit and cause of action, and I now and here so certify and request your excellency to designate some district judge in an adjoining district to exchange and try the case as provided under article 1885 of the Rev. Statutes 1925.

                               "[Signed] R. J. Williams
                               "Judge 102d Judicial District."
                

The relator here insists that the grounds stated by Judge Williams are not grounds of disqualification, and that Judge Williams should be required to go forward with the trial of the case. It insists that the brothers-in-law of the district judge are not parties to the suit, which was brought solely against the corporation, and is being defended solely by the corporation. It insists that they are neither necessary nor proper parties to the action, since all matters arising out of the same can be adjudicated between H. H. and C. D. Lennox and the corporation without the intervention of individual stockholders or members.

Manifestly, if the petition for mandamus presents in good faith and upon reasonable grounds a justiciable question for determination by the Supreme Court, then the temporary injunction ought to issue, in order to protect the jurisdiction of the Supreme Court and enable it to make effective such order as it may enter.

The writer has concluded, after an examination of the authorities, that the law as to whether or not Judge Williams is disqualified is, under the decisions of our courts, in an unsettled state, and that therefore the application for mandamus does present in good faith and upon reasonable grounds a justiciable question for the determination of the Supreme Court.

The Texas Farm Bureau Cotton Association is a corporation organized under the Cooperative Marketing Association Act of this state, which may be found in articles 14½k to 14½yy, Vernon's Texas Civil Statutes, 1922 Supplement. Corporations of this character are declared by the statute to be nonprofit associations, "inasmuch as they are not organized to make profits for themselves as such or for their members as such, but only for their members as producers." The statute discloses, however, that organizations of this character are corporations for all essential purposes, although the method of operation and the rights of the members are different from those in an ordinary corporation. These corporations may be organized without capital stock, but they are permitted to accumulate a reserve fund from the profits or net proceeds of their activities. In the argument it was stated that the relator here did have such a reserve fund of approximately $1,000,000. Membership certificates are issued to the members, and entitle them to the rights and privileges set forth in the statute. If this corporation is to be regarded as any other corporation, then it is settled by the authorities that the fact that a stockholder may be related within the prohibited degree to the trial judge would not disqualify the judge from trying a case to which the corporation was a party. 33 Corpus Juris, 108; Kingman-Texas Implement Co. v. Herring National Bank (Tex. Civ. App.) 153 S. W. 394; Houston Cemetery Co. v. Drew, 13 Tex. Civ. App. 536, 36 S. W. 802; Lewis v. Hillsboro Roller Mill Co. (Tex. Civ. App.) 23 S. W. 338.

Whether or not the Texas Farm Bureau Cotton Association is such a corporation as is within the rule as to disqualification announced in the authorities cited appears to the writer to be a question for the determination of Supreme Court, and not one so clear as that a justice of this court ought on hearing of this character say that it is not a justiciable question which can be urged in good faith.

Insistence is made here that the contract entered into with the Texas Farm Bureau Cotton Association by the respondents H. H. and C. D. Lennox, and with other parties, necessarily constitutes one contract, and that therefore ...