Duncan v. Herder

• Decision Date: 15 November 1909
• Citation: Duncan v. Herder, 122 S.W. 904, 57 Tex.Civ.App. 542 (Tex. App. 1909)
• Court: Texas Court of Appeals
• Parties: DUNCAN v. HERDER et al.

Page 904

122 S.W. 904

DUNCAN v. HERDER et al.

Court of Civil Appeals of Texas.

November 15, 1909.

Rehearing Denied December 9, 1909.

Appeal from District Court, Fayette County; L. W. Moore, Judge.

Action by John T. Duncan against George Herder and others. From a judgment dissolving an injunction issued as prayed for by plaintiff, he appeals. Reversed, and injunction reinstated.

John T. Duncan, pro se. Brown & Lane, for appellees.

REESE, J.

John T. Duncan instituted this suit in the district court of Fayette county against George Herder and others seeking to have set aside and canceled a certain judgment theretofore rendered in said court against one Josef Peter and Barbara Peter in favor of George Herder, the plaintiff in said suit, and also in favor of certain defendants, including Mrs. A. C. Lenert, survivor of the community estate of herself and her deceased husband upon their cross-action against Peter, for the amount of their respective debts against Peter, and foreclosure of their respective liens on certain real estate, and adjusting equities between the parties arising from the different liens. Among other objections urged by plaintiff to the validity of said judgment was the disqualification of the Honorable L. W. Moore, judge of said district court, to try the case. The ground of disqualification was the relationship of said judge, within the prohibited degree, to the wife of his son, J. W. Moore, who, it is contended upon the following facts, was a party to said suit. One of the defendants in said suit was Mrs. A. C. Lenert, who was made a party in her capacity as survivor and representative of the community estate of herself and her deceased husband, A. C. Lenert, the note upon which she recovered judgment and decree for foreclosure upon the land having been executed to the said A. C. Lenert during his lifetime, and being the property of the community estate. Mrs. Moore, the wife of the son of the district judge, was one of the children of the said Lenert, and his wife, Mrs. A. C. Lenert, the said A. C. Lenert having died intestate, was interested as one of the heirs of said A. C. Lenert in the debt, which was the subject-matter of said suit. She was not named as a party in said suit, which was prosecuted alone by her mother, Mrs. A. C. Lenert, as survivor of the community. In aid of his suit, Duncan, the plaintiff in the present suit, sought and obtained from Hon. E. R. Sinks, judge of the Twenty-First judicial district, adjoining the Twenty-Second judicial district, of which Fayette county is a part, an injunction restraining the execution of said judgment and decree in the case of Herder v. Peters et al. by a sale of the land in question. The grounds for presenting such application to Judge Sinks, instead of the judge of the court in which the suit was brought and to which such injunction was made returnable, was that the Honorable L. W. Moore, judge of said court, was disqualified by reason of the facts aforesaid from making any order in said cause. Under this state of facts, and upon the ground, as stated by him in his order, that Judge Moore was disqualified, Judge Sinks granted the injunction and ordered the writ to issue restraining the sale of the property.

We omitted to state that not only was it alleged that Mrs. Moore was interested in the note sued upon in the Herder Case as one of the heirs of A. C. Lenert, but that there was certain interest due thereon which was community property of herself and her husband, J. W. Moore, in which he was also interested. This, however, we do not think is material, as there is no question made that Mrs. Moore is related within the third degree to the Honorable L. W. Moore. The order of Judge Sinks granting the injunction was made July 27, 1909, and was filed in the district court of Fayette county July 31, 1909, and the writ was served on the sheriff on August 2, 1909. On August 3, 1909, George Herder. by his attorneys, presented to the Honorable L. W. Moore, as judge of the district court of Fayette county, his motion or application to dissolve said writ of injunction on the ground that Judge Sinks had no authority to grant the writ, Judge Moore not being in fact disqualified, not denying, however, the truth of the facts herein set out as grounds for such disqualification. It was further set out in such motion that no grounds for injunction were stated in such petition. The questions presented by this part of the motion are not material to be here considered. On the same day, August 3, 1909, Judge Moore made, and had entered, his order vacating the order of Judge Sinks, dissolving said injunction, and ordering the sheriff to proceed with the sale under said execution. The order of Judge Moore is based solely, as set forth therein, upon the ground that he was not disqualified, and that, therefore, Judge Sinks had no jurisdiction, power, or authority to grant the injunction which was on that account void. It appears from a bill of exception reserved by plaintiff, Duncan, to the action of the court, that he had been notified of the hearing of the motion, and that he had appeared and objected to the hearing of the motion at the time set, or until after 10 days' notice to him as provided by statute, which was overruled, and the court thereupon proceeded at once, and upon the same day of the filing of the motion, to act upon it and to dissolve the injunction. The district judge qualifies the bill by the explanation that he acted solely upon the ground that judge Sinks' order was void, and interposed no legal obstacle to the sale. This appeal is prosecuted, under the statute, from the order dissolving the injunction.

In the view we take of the questions presented, it will only be necessary to decide the single question: Under the facts shown, was Judge Moore disqualified to hear and determine the application for the injunction and the motion to dissolve? As we understand the position taken by appellee, it is not contended that the judge did not err in hearing the motion on the day it was filed over the objection of appellant, who demanded the 10 days' notice provided by statute (article 3007, Rev. St., 1895), but it is contended that the order of Judge Sinks and the writ of injunction issued thereunder were absolutely void, and therefore the dissolution of such void injunction worked no harm to appellant, that it was unnecessary and of no real legal effect, serving no other purpose than would the mere opinion of the district judge to the sheriff that the injunction was void, and should not be obeyed. Whether such injunction would have been absolutely void, or merely irregular and erroneous, if, in fact, Judge Sinks had been in error as to the disqualification of Judge Moore, is a very troublesome question, which it is not necessary for us to decide. Acts 1st Called Sess. 31st Leg. 1909, p. 354, c. 34.

Passing, then, to the only question we shall discuss or decide, as to whether Judge Moore was disqualified, we are met by what appears to be a conflict between the opinion of the Supreme Court in the case of Winston v. Masterson, 87 Tex. 200, 27 S. W. 768, and earlier decisions of the Supreme Court upon this question. The...