Coles v. Thompson

• Decision Date: 06 June 1894
• Citation: 27 S.W. 46
• Parties: COLES v. THOMPSON.
• Court: Texas Court of Appeals

27 S.W. 46

COLES v. THOMPSON.

Court of Civil Appeals of Texas.

June 6, 1894.

Appeal from district court, Bee county; S. F. Grimes, Judge.

Action by M. Thompson against S. M. Coles for libel. From a judgment for plaintiff, defendant appeals. Affirmed.

G. R. Scott & Bro. and Dugat & Mims, for appellant.

JAMES, C. J.

Appellee brought this suit in Karnes county to recover damages of appellant for libel. Plaintiff was the pastor of a colored Congregational church at Helena, and he had charge of the Congregational church at Goliad, where he preached once a month. Jack Lott was a member of the Goliad church, but contributed to said pastor's salary at the Helena church. It seems that a scandal had occurred and become the subject of investigation in the colored Congregational church at Corpus Christi, involving one Strong in a charge of seduction and murder. The defendant was an intimate friend of Strong, who was pastor of the church at Corpus Christi, and supported him in his trial. The defendant, Coles, acted as moderator at the trial, and afterwards wrote to Jack Lott a lengthy letter, giving a detailed account of what developed there against Strong, which letter we may say was, and was intended to be, argument that had a decided tendency to convince one that Strong was guilty of said offenses, and that Strong's statements and explanations upon that trial were untruthful. The letter concludes with the following paragraph: "Now, these are some of the main facts. You can judge for yourself. I understand your pastor has been misrepresenting our church. He made himself ridiculous here. Put him and Strong in a sack together, which would tumble out first? Both are void of judgment, reason, or moral principles. You may read this letter to all you wish." The letter was read by and to others to a considerable extent, in the neighborhood of plaintiff's churches; and plaintiff, being the person referred to by said paragraph, sues for damages by reason of its derogatory references to him.

The record shows that the district judge presiding in Bee county, when the cause was removed there, entered his disqualification, and the Honorable G. W. L. Fly was regularly agreed on by the parties as special judge, and qualified as such, and had, previous to the trial term, made orders in the cause. At this term the disqualified judge had been regularly succeeded in office by another judge, before whom the trial was had. The defendant objected to the trial taking place before the district judge, on the ground, as assigned, that the appointment of the special judge was in force, never having been revoked, altered, or changed by the parties to the cause. We are referred to no authorities, and we find none, of the court in this state, relative to the duration of the special judge's powers when the judge by reason of whose disqualification the special judge came to be appointed has gone out of office, and another elected, who is not disqualified. We are of opinion that, on principle, the powers of a special judge terminate when the occasion for his existence has ceased. There can be no substantial reason why the district judge should not proceed to hear and determine any cause on the docket of his court where no cause exists disqualifying him from so doing. If the special judge had proceeded and tried this cause, there is authority for holding, under certain circumstances, that his judgment would not be reversed on appeal; and it seems well established that his judgment would not be held void in any case on collateral attack. In such cases the act of the special judge has been given effect as done colore officii. The case before us, however, was tried by the regular judge of the court in which the cause was pending, who was free from any disqualification, and our opinion is that it was within his constitutional power to proceed and try the cause.

The second assignment of error...