Connellee v. Blanton

• Decision Date: 13 December 1913
• Citation: 163 S.W. 404
• Parties: CONNELLEE v. BLANTON.
• Court: Texas Court of Appeals

163 S.W. 404

CONNELLEE v. BLANTON.

Court of Civil Appeals of Texas. Ft. Worth.

December 13, 1913.

Rehearing Denied January 31, 1914.

Appeal from District Court, Eastland County; W. W. Beall, Judge.

Action by Thomas L. Blanton against C. U. Connellee. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

See, also, 163 S. W. 407.

D. G. Hunt, of Eastland, and J. J. Butts, of Cisco, for appellant. J. F. Cunningham, of Abilene, and Stephens & Miller, of Ft. Worth, for appellee.

DUNKLIN, J.

C. U. Connellee has appealed from a judgment against him in favor of Thos. L. Blanton by which plaintiff, Blanton, was awarded damages for libel alleged in plaintiff's petition. The case was tried by the court without the aid of a jury, and the trial judge filed findings of fact, which appear in the record, and none of which is assailed by appellant. The charge of libel was based upon statements contained in a letter or application, signed by defendant, addressed to Gov. O. B. Colquitt at Austin, Tex., for the pardon of one George Parvin, who had been convicted of aggravated assault upon J. R. Stubblefield. The conviction was in the district court of Callahan county, and Parvin's punishment had been fixed at imprisonment in the county jail for two months and the payment of a fine of $250, together with costs of suit.

The application for pardon contained the statement that the assault was committed in the presence of Hon. Thos. L. Blanton, the district judge who tried the case; that the assault at most was only a simple assault and should have been tried in the justice court of Eastland county, and thus prevented an accumulation of costs by reason of a great number of friends of the party injured having been induced to go to Baird where the case was tried and their attendance charged up as costs of suit. The application contains this statement: "The lick struck did not cause any bruise or erasion, and knocked Stubblefield to his knees, but did not knock him unconscious. Stubblefield got up and walked with Judge Blanton to the post office some 60 feet away, and then walked some 100 feet to a drug store. Had Parvin desired, he could have struck him a number of times, as no one interfered. But the lick he struck him was done under excitement, and without any intention of seriously harming him. But having been done in the presence of the district judge, the judge changed the venue of the case for the purpose of making the costs excessive." In plaintiff's petition in this suit the language used in the application, "the judge changed the venue of the case for the purpose of making the costs excessive," was alleged to be untrue and written and published with actual malice on the part of the defendant without any foundation whatever, and was libelous. The trial judge sustained those allegations in full, and upon that finding rendered judgment in plaintiff's favor for actual damages in the sum of $3,000, which was the full extent of the judgment. One of the conclusions filed by the trial judge reads: "The court has a discretion not to award any exemplary damages, even though said letter was written and published with actual malice, and exercising such discretion, awards none."

This suit was instituted and tried in the district court of Eastland county, and Hon. W. W. Beall, district judge of the Thirty-Second judicial district, presided at the trial. Eastland county is one of the counties which composed the Forty-Second judicial district, and plaintiff, Hon. Thomas L. Blanton, was district judge of that district. The following order entered upon the minutes of the district court of Eastland county during the January term, 1913, of that court is the only showing in the record touching the authority of Hon. W. W. Beall to preside at the trial: "January 15, 1913. Now at this time, to wit, ten o'clock a. m. January 15. 1913, all business heretofore set for disposition up to and including this date having been duly transacted, and it appearing to the court that there are three cases on the docket in which I am disqualified, having refused myself in same, to wit: No. 1,539, J. O. Bohannon v. A. C. Bennett et al.; No. 1,848, A. C. Williams v. A. C. Bennett et al.; No. 2,181, Thomas L. Blanton v. C. U. Connellee; and it further appearing that Hon. Judge of the Thirty-Second judicial district of Texas has agreed to hold this court for the purpose of disposing of said three cases, and will take charge of this court on this morning, and that all attorneys interested in the above-mentioned cases have been given due and ample notice of such arrangements, the said district court of Eastland county, Tex., is here now turned over to the said Hon. W. W. Beall, Judge of the Thirty-Second judicial district of Texas, Presiding. Thomas L. Blanton, Judge Forty-Second Judicial District of Texas."

Trial of the case was once postponed by Judge Beall upon the written agreement of the parties that he might do so, and, in the trial court, the only challenge of his authority to hear and determine the suit was made after judgment rendered and in appellant's motion for a new trial.

In support of an assignment of error presenting the same question here, appellant invokes article 1676, Revised Civil Statutes 1911, which reads: "Whenever any case or cases, civil or criminal, are pending, in which the district judge is disqualified from trying the same, no change of venue shall be made necessary thereby; but the judge presiding shall immediately certify that fact to the governor, whereupon, the governor shall designate some district judge in an adjoining district to exchange and try such case or cases, and the governor shall also notify both of said judges of such order; and it shall be the duty of said judges to exchange districts for the purpose of disposing of such case or cases, and, in case of sickness or other reasons rendering it impossible to exchange, then the parties or their counsel shall have the right to select or agree upon an attorney of the court for the trial thereof." Section 11, art. 5, of our state Constitution, provides: "And the district judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law." Article 1715 of the Statutes is as...