Baldwin v. Leonard

• Decision Date: 24 November 1937
• Docket Number: No. 1717.,1717.
• Citation: 110 S.W.2d 1160
• Parties: BALDWIN et al. v. LEONARD.
• Court: Texas Court of Appeals

110 S.W.2d 1160

BALDWIN et al. v. LEONARD.

No. 1717.

Court of Civil Appeals of Texas. Eastland.

November 24, 1937.

Rehearing Denied December 17, 1937.

Appeal from District Court, Stonewall County; B. W. Patterson, Judge.

Suit by O. P. Leonard against Mrs. Nannie L. Baldwin and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Fred Stockdale, of Aspermont, for appellants.

Ernest May, of Fort Worth, for appellee.

LESLIE, Chief Justice.

O. P. Leonard instituted this suit in the nature of trespass to try title, but really for possession, only, of a tract of land situated in Stonewall county.

A trial resulted in an instructed verdict and judgment thereon for the plaintiff against the defendants, Mrs. Nannie L. Baldwin and others. The defendants appeal, claiming that the judgment is invalid because it was rendered by a judge who had not been selected in accordance with article 5, § 11, of the Constitution of Texas. A part of the contention is that there is a total absence in the record of any showing that the judge trying the case "was elected after any disagreement of the parties in selection of a judge to try this cause. * * *"

It would seem that "absence of showing" in the record is an element of strength in favor of the judgment. Appellants' pleadings and concessions in their brief establish that B. W. Patterson, presiding judge, was the duly elected and qualified district judge of the Eighty-Eighth judicial district, Eastland county, Tex. Further, that Judge Dennis P. Ratliff, regular district judge of the Thirty-Ninth judicial district (of which Stonewall county is a part), was disqualified to try the case, and that more than once he had certified the fact of his disqualification to the Governor. The Governor had on three separate occasions designated district judges in adjoining districts to sit and try this case. For sufficient reasons they did not preside, but Judge Patterson, at the appointed time, appeared and tried the case at a regular term of court, but over the protest of the defendants to the effect that they had a right to agree, or, at least, to attempt to agree, with the plaintiff Leonard on "a proper person to try the case." That in any event, the Governor was not warranted in designating a judge for the trial until the litigants had disagreed on the selection of a proper person.

Additional to the above facts, there is in the judgment the following significant recital, namely: "On this the 5th day of June, 1936, at a regular term of this court, this cause came on for hearing before Hon. B. W. Patterson, Judge of the 88th District Court sitting for the regular judge of this court who was disqualified herein."

That he was sitting "for the regular judge" under the circumstances cannot be denied. Certainly the record does not refute that fact.

Governing in such cases and supplying the authority of a regular district judge are constitutional and statutory provisions of this state as follows:

"District Judges may * * * hold courts for each other when they may deem it expedient." Article 5, § 11, Const. of Texas.

"A judge of the district court may hold court for or with any other district judge; and the judges of such courts may exchange districts whenever they deem it expedient." Article 1916, R.S.1925.

On the proposition we cite Marx v. Weir (Tex.Civ.App.) 130 S.W. 621 (error ref.); Connellee v. Blanton (Tex.Civ.App.) 163 S. W. 404.

It is our conclusion that upon the showing made by this record Judge Patterson, being a district judge, derived his authority to try the case from the provisions of the Constitution and statute referred to, and it would be immaterial whether his designation by the Governor (if the record so showed) to try the case was in strict accordance with article 1885, R.S.1925, or not.

Under the above provisions, "* * * an exchange of districts may be effected upon the judges' own initiative, or as the result of a request of one of the judges. The making and entry of a formal order declaring the exchange of districts by the judges is not required; nor is it essential that the docket or minutes show a reason for the exchange." 25 Tex.Jur. p. 346, § 96.

The above provision of the Constitution and statute answer the appellants' contentions, but aside from the material facts conceded, and alluded to above, there is nothing but extensive pleadings (plea and protest) advancing different reasons why Judge Patterson was without authority in law to try the case. There is not to be found in the statement of facts or a bill of exception any testimony, documentary or otherwise,...