Gains v. Barr

• Citation: 60 Tex. 676
• Decision Date: 07 March 1884
• Docket Number: Case No. 1572.
• Parties: W. B. P. GAINS ET AL. v. ROBERT BARR ET AL.
• Court: Supreme Court of Texas

60 Tex. 676

W. B. P. GAINS ET AL.

v.ROBERT BARR ET AL.

Case No. 1572.

Supreme Court of Texas.

Mar. 7, 1884.

ERROR from Harris. Tried below before the Hon. James Masterson.

Defendants in error brought this suit against plaintiffs in error and others to set aside and annul certain orders of sale, sales, and confirmations thereof, made by order of the probate court of Harris county, in the estate of Robert Barr, deceased, administered on by one Jacob De Cordova.

Defendants in error, claiming as the children and heirs of Robert Barr, deceased, alleged in substance that the administration, and all the orders and proceedings therein had, were irregular and illegal; that the sales were procured and made by plaintiffs in error and the administrator fraudulently, and for the purpose of defrauding defendants in error, and that there were no valid and subsisting debts against the estate at the time the order was procured and the sales made, etc.

A change of venue was ordered to Fort Bend county, the presiding judge being related to one of the heirs of Alexander Ewing deceased, whose estate was a party to the suit.

The district court of Fort Bend county ordered that the case be returned to the district court of Harris county. On May 1, 1880, the cause came on for trial and none of the defendants therein appeared. An order was made discontinuing the cause as to several of the original defendants, among them the estate of Alexander Ewing, deceased. Judgment was then rendered against plaintiffs in error vacating and annulling the sales. Other facts appear in the opinion.

Goodrich & Clarkson, for plaintiff in error.

No briefs on file for defendant in error.

WATT, J. COM. APP.

It is claimed that the judgment is erroneous and void because the judge who rendered it was not qualified to sit in the cause. The constitution provides that “no judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity or consanguinity, within such degree as may be prescribed by law.” The statute declares that no judge shall sit in any cause where either of the parties may be connected with him by affinity or consanguinity within the third degree.

From the motion presented by the defendants in error for change of venue, as well as the recitals contained in the order granting the same, it is made to appear that A. R. Masterson is a brother of the judge who presided in the court below; that the wife of A. R. Masterson is the daughter of Alexander Ewing, deceased, whose estate is a party to the suit represented by the administratrix.

When the cause came on for trial, an order was made and entered discontinuing the same as to the estate of Ewing. If, as claimed, the presiding judge was disqualified by reason of his relationship with the wife of A. R. Masterson, then it is clear that he could not enter an order of discontinuance as to the party whose interest works the disqualification, and in that way qualify himself to sit in the cause. For, as was held in Garrett v. Gaines, 6 Tex., 435, an order dismissing a suit made by a judge who was disqualified from sitting in the cause is a nullity.

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