Burguieres v. Farrell

• Decision Date: 06 September 1935
• Docket Number: No. 13199.,13199.
• Citation: 85 S.W.2d 952
• Parties: BURGUIERES v. FARRELL et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W.2d 952

BURGUIERES v. FARRELL et al.^*

No. 13199.

Court of Civil Appeals of Texas. Fort Worth.

On Motion to Disqualify June 7, 1935.

Opinion June 28, 1935.

Rehearing Denied September 6, 1935.

On Motion to Disqualify.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Suit by Stella B. Burguieres against John E. Farrell and another. Judgment for defendants, and plaintiff appeals and, preliminary to a hearing of the appeal, moves to disqualify Justice H. S. Lattimore from acting as one of the judges in the disposition of the appeal.

Motion to disqualify overruled, and judgment affirmed.

Slay & Simon, of Fort Worth, for appellant.

Cantey, Hanger & McMahon, Mark McMahon, Gillis A. Johnson, and Warren Scarborough, all of Fort Worth, for appellees.

On Motion to Disqualify Justice H. S. Lattimore.

DUNKLIN, Chief Justice.

In the above-entitled suit Mrs. Stella Burguieres has prosecuted an appeal from a judgment of the district court of the Ninety-Sixth judicial district, denying her petition in the nature of a bill of review to set aside that portion of a judgment theretofore rendered by the same court in a former suit by her for divorce against her former husband, John E. Farrell, in which she was divested of her interest in the community estate of herself and said Farrell and same vested in him in accordance with a written agreement of the parties to that suit on file therein; and also to cancel said written agreement. The grounds for that relief are set out in her petition in the nature of a bill of review. That appeal is now pending in this court. As shown by allegations in plaintiff's petition, the former suit for divorce and property settlement, instituted by her, was tried before Hon. Hal S. Lattimore, the regular elected judge of said court, who granted the divorce and also decreed the property settlement now complained of. After the divorce was granted, plaintiff married again to Alfred L. Burguieres, but she was by order of court given leave to institute and prosecute her present suit to set aside the former judgment of property settlement in her present married name of Stella Burguieres without joinder by her husband. But no effort was made to set aside the decree of divorce. As shown by the record, the suit now on appeal was tried before Hon. Marvin H. Brown, who had succeeded Hon. Hal S. Lattimore as judge of the same court. Both of said judges are now associate justices of this court; and appellant has filed a motion to disqualify Justice Lattimore from acting as one of the justices in the disposition of the appeal which is now pending.

The facts alleged in and made the basis of the motion to disqualify were developed in the trial of the case now on appeal and relate to what occurred after judgment in the divorce case had been entered and are as follows:

"Motion for new trial by defendant J. E. Farrell.

"Now comes the defendant and says the judgment in this cause is erroneous and should be set aside for the following reasons:

"(1) The evidence submitted to the court was not sufficient to justify a divorce and did not show any grounds therefor.

"(2) The judgment was procured by fraud on the part of the plaintiff in that the plaintiff induced the defendant to believe that her grief caused her to wish a separation in order that she might compose her mind and consider further what her relations to plaintiff would be when, in fact, plaintiff only wanted a divorce, knowing that she had no grounds therefor, in order to embarrass the defendant by seeking marriage with another.

"Wherefore defendant prays for a new trial.

                            "[Signed] J. E. Farrell."
                

Testimony of Judge Lattimore given on the trial of the present suit to set aside the property settlement:

"Q. Now, I'll ask you if John Farrell came to see you, or if you saw him anywhere else after the divorce was granted, and, if so, when? A. Well, the next time I saw Mr. Farrell was later, I can't say how soon. I know it was less than ten days because of what I shall relate, but I can't give you the exact number of days that it was after the divorce hearing. He came to my office there, and he said that he was not willing for this settlement, this property judgment, to stand, and wanted to talk to me about it.

"Q. Did he say why he didn't want it to stand? A. Yes.

"Q. Tell the jury what he said. A. He said that he had some information that his wife had formed some attachment and relation for a man in New Orleans, and that he felt like her property would be dissipated, and that he was going to—he felt like the decree ought to be set aside, and some steps taken to protect it.

"Q. Did he give any reasons why, other than that, about the New Orleans man? A. Yes.

"Q. What was it? A. Well, he said that— * * *

"A. He said he had understood that she was planning to get married to a man in New Orleans, who would simply live off of what he got from what Mrs.—the Mrs. Farrell had. I can't pronounce that name and hence don't attempt it—that he would simply live off of what the then Mrs. Farrell would get from this marriage settlement, and that he was not going to have that fellow living off of his money.

"Q. You say that was within the ten days as provided by statute for a new trial? A. Yes.

"Q. Was anything further said? A. Yes, he said, `I want to know what to do about it.' And I said, `Well, you had better go and consult your lawyer.' And he said, `I don't have any.' And I said `well, you don't have any lawyer'. He said, `No, Mr. Zweifel was agreed on by us to handle this divorce matter, and I don't have a lawyer.' And I said, `well, you had better file a formal motion for new trial, which must be filed within ten days, and then you can get you—go and get you a lawyer, and he will amend it, and get it up in shape that it can be presented, if it is any good.' And he said, `I don't know how to do that'. And I took up my pencil and sketched off the elements that must be in to make a motion for new trial. And I said, `go down and write up something that embody these elements, and file it, and it will be sufficient to hold the thing until you can get you a lawyer, and amend it, and set up in whatever shape you want it to be in, if one can be presented that will be good.'

"Q. That was in order to have something on file before the ten days was up? A. Yes, the law requires a motion for new trial to be filed in ten days, and an amendment can be made thereafter setting up what you really want.

"Q. Do you know how much more time he had before the ten days would have elapsed? A. Well, I just don't remember. But I do remember that the time was so short it was apparent that he would have to do something pretty promptly, but I couldn't attempt to say within hours or even days of when it was."

Testimony of J. E. Farrell:

"Mr. Slay: Now, Mr. Farrell (exhibiting defendant's exhibit 23 to the witness), this exhibit, the motion for new trial you testified about, examine it, so you will know what I am talking about, please, sir. A. Yes, that is it.

"Q. I believe you said you dictated that yourself, or wrote it, on the machine yourself? A. I wrote it on the machine. Judge Lattimore dictated it for me, wrote it out. It was last day and I didn't have any more time.

"Q. You say Judge Lattimore dictated it to you? A. He told me the high-lights about it.

"Q. He told you the high-lights about it, and you went down and put it on the machine yourself, and wrote it up yourself? A. Yes, sir.

"Q. He didn't give you a written memorandum, though, of what to put in, did he? A. Just on these two points here.

"Q. Did he write it down for you? A. Yes, in pencil.

"Q. Or did he just tell you? A. Yes, he told me and wrote it down in pencil for me.

"Q. Oh, did he write it out in detail like it is here? A. Well, I couldn't say that, whether he wrote it out in detail.

"Q. Tell this jury whether or not you wrote that yourself, or whether he gave you the points and wrote it yourself, or whether he wrote it, and then you copied it. A. No, he gave me the points in pencil, and then I took this down to the office and wrote it myself. You will find that you will find those letters which are written to Sis, you will find it is the same type.

"Q. Now, who made the endorsements and put the number on the back of it? A. I don't know who did that."

Article 5, § 11, of the Constitution reads: "No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. When the supreme court, the court of criminal appeals, the court of civil appeals, or any member of either, shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the governor of the state, who shall immediately commission the requisite number of persons learned in the law, for the trial and determination of such cause or causes."

In support of the motion now before us, appellant has cited decisions in which it was held that trial judges were disqualified to try cases because prior to the time the same were tried they had to some extent acted as counsel in advising the litigants in matters involved in those cases. Among the cases cited are the following: Slaven v. Wheeler, 58 Tex. 23; Barnes v. State, 47 Tex. Cr. R. 461, 83 S. W. 1124; Durham v. State, 58 Tex. Cr. R. 143, 124 S. W. 932; Johnson v. Johnson (Tex. Civ. App.) 89 S. W. 1102.

In Gaines v. Hindman (Tex. Civ. App.) 74 S. W. 583, this was said:

"Appellant, who was constable of a precinct, sued appellee, who was the sheriff of Palo Pinto county, to recover a portion of a reward paid to the latter by the United States government for the arrest and conviction of certain persons who had robbed a post office in that county. The cause was first tried in the justice court, where appellant had judgment, and...