Ferguson v. Chapman

• Decision Date: 01 May 1936
• Docket Number: No. 1542.,1542.
• Citation: 94 S.W.2d 593
• Parties: FERGUSON v. CHAPMAN.
• Court: Texas Court of Appeals

Page 593

94 S.W.2d 593

FERGUSON v. CHAPMAN.

No. 1542.

Court of Civil Appeals of Texas. Eastland.

May 1, 1936.

Rehearing Denied May 29, 1936.

Error from District Court, Haskell County; A. S. Mauzey, Judge.

Action by R. A. Chapman, Jr., against A. M. Ferguson. Judgment for plaintiff, and defendant brings error. Defendant in error sought to have judgment of trial court affirmed with 10 per cent. damages for the suing out of the writ of error without sufficient cause and for purposes of delay.

Penalty disallowed, and judgment of trial court affirmed.

M. J. Baird, of Sherman, for plaintiff in error.

Hamilton, Lipscomb & Wood, of Dallas, for defendant in error.

LESLIE, Chief Justice.

R. A. Chapman, Jr., instituted this suit against A. M. Ferguson on a promissory note for $19,000 and to foreclose lien securing same. The defendant urged a plea in abatement, suggested lack of necessary parties, and presented answer containing exceptions and general denial. After judgment, the defendant raised certain questions involving the qualifications of the trial judge. The trial was before the court and jury and resulted in a verdict for the plaintiff. The defendant appeals, and the parties will be referred to as in the trial court.

The defendant Ferguson executed said note to plaintiff Chapman August 31, 1929, payable on demand, with extension agreement August 7, 1933, to August 17, 1933. To secure it, Ferguson executed a mortgage upon all his right, title, and interest in the estate of his deceased sister, Kate F. Morton, the same being all such property as "he might be entitled to as legatee under the will of said Kate F. Morton, deceased, or as an heir under the law of descent and distribution of the State of Texas." The note bore 8 per cent. interest and provided for 10 per cent. attorney's fees. At date of judgment, it amounted to $28,026.16, which was entitled to a credit of $1,375, as found by the jury. The petition alleged probate of the Morton will, the defendant's rights as residuary legatee to a large portion of her property, and referred to the description thereof as found in the records of the deed of trust and probate proceedings in Haskell county, etc.

This suit (No. 4482) was filed August 25, 1934. September 24th following was appearance day of the court. On the latter date, the defendant and his attorney being present in court, it was announced that the instant case would be set for trial October 29, 1934. October 29, 1934, the Hon. A. S. Mauzey, judge of the Thirty-Second judicial district of Texas, sitting in exchange of benches with the Hon. Clyde Grissom, district judge of the Thirty-Ninth judicial district, was present, presiding over the Haskell district court. The instant case was called for trial. Neither the defendant nor his attorney were present and no announcement was made by the defendant.

When the case was called there was on file the defendant's plea in abatement filed September 24, 1934, setting up that a suit involving the same parties and subject-matter had been filed in the district court at Dallas county prior to the filing of this suit in Haskell county, and that it had been set for trial in Dallas county on December 15, 1934, etc. This contention was answered by the plaintiff's filing in this case on October 29, 1934, a certified judgment of the Dallas district court dismissing without prejudice on October 27th the suit pending in that court. Hence, no error in overruling the plea in abatement.

After the disposition of the plea in abatement, a jury was impaneled in response to the defendant's written demand therefor, accompanied by the clerk's receipt for the jury fee paid by the defendant.

The jury impaneled, the trial proceeded, and while the testimony was being introduced there was filed with the clerk of the court, about 3 or 3:15 o'clock p. m., what is designated as "Defendant's Plea in Abatement or Bar in said Cause." It was signed by the defendant and his attorney, and suggested the lack of an alleged necessary party, namely, A. M. Ferguson, temporary administrator of the estate of Kate F. Morton, deceased. It prayed for dismissal or abatement of the suit. The trial continued, and after plaintiff rested his cause and while the court was preparing his charge, the defendant caused to be filed with the district clerk, about 3:20 or 3:25 p. m., an answer in the cause. It presented (1) special exceptions, (2) general demurrer, and (3) general denial. One Bill Gidney filed these pleadings in behalf of defendant.

In response to a special issue, the jury found the note entitled to a credit of $1,375, and upon the verdict and undisputed evidence the court rendered the judgment October 29, 1934. The following November 6th defendant filed "Objections to the Trial," the gist of which is that Judge Mauzey had not been designated to sit therein in accordance with the Constitution and statutes of Texas. If these "Objections" were called to the attention of the court and a ruling had thereon, the transcript shows no evidence of same in the minutes of the court.

Following the judgment of October 29, 1934, the defendant filed on October 31st his "Original Motion for a New Trial." Until the filing of this motion for a new trial, no question whatever had been raised in this cause by the defendant suggesting disqualification of Judge Mauzey by reason of interest, bias, partiality, etc. There is attached to said motion an affidavit by the defendant in which he states, among other things, that on September 1, 1934, he filed in this cause a motion alleging interest, bias, partiality, etc., of said Judge Mauzey. A careful examination of the record, and especially the affidavit, discloses that there was attached to the affidavit (made October 31st) as Exhibit 1 a document styled and captioned as follows:

"Application of Estate of Kate F. Morton, A. M. Ferguson, Temporary Administrator, and Joined as Intervenor by A. M. Ferguson, Individually, as Devisee, Legatee, and Creditor of Estate for Special Judge and Special Term of District Court, Haskell County, Texas.

"To Hon. W. R. Chapman, Presiding Judge, Judicial District and Hon. Clyde Grissom, Dist. Judge, Haskell, Texas.

"Filed in No. 4347 but referring to all cases.

"On this August 31st, 1934, comes:

"Estate of Kate F. Morton, A. M. Ferguson, Temporary Administrator with A. M. Ferguson, individually, as devisee, legatee, and creditor of said estate, and joining as intervenor, hereinafter referred to Petitioners when both are meant, and make this application for appointment of special judge and for designation of a special term of district court of Haskell County, Texas, to try pending estate cases hereinafter named, and state:" etc.

This application states that it contains "a detailed and comprehensive history setting out the actual occurrences and facts and the acts which have occurred in the District Court of Haskell County (and also the County Court of said county) for the period from 1925 to the present time showing the alleged complete break-down of the administration of those courts in said county with reference to the business of the estate of Kate F. Morton, deceased, and of this affiant," etc.

This application set up that there was then pending for trial in the district court of Haskell county about 30 cases involving the Morton estate, and a list of the same, including the present one (4482) was set out. This application to Judges Chapman and Grissom concluded with a prayer for relief as follows:

"(1) Calling of a special term of the district court of Haskell County, Texas, to hear petitioner's motion for a change of venue on all pending cases involving the estate of Kate F. Morton, A. M. Ferguson and Joe Lee Ferguson and Ferguson Seed Farms.

"(2) That the presiding judge of the judicial district, or said district judge of said Haskell County as for or obtain through said presiding judge of the Administrative Judicial District W. R. Chapman, a special judge or said Hon. W. R. Chapman, presiding judge of the said administrative judicial district, to try said matters, the judge to be obtained, to be some judge other than the said Judge A. S. Mauzey; the trials to be, first, upon the application for change of venue.

"(3) That if a change of venue be not granted, then that these pending cases therein mentioned be tried on their merits at an early date."

The application or motion thus addressed to said two officials appears to have had the double purpose of having Judge Chapman, presiding judge of the administrative district, appoint a district judge, other than Judge A. S. Mauzey, to try said cases involving the Morton estate, and also to have Judge Grissom call a special term of the Haskell district court for the trial of said cases by the judge so designated. Evidently it was a copy of this application or motion that was delivered by the defendant to Judge Mauzey at Sweetwater about September 1st.

It clearly appears from the record and the defendant's motion for a new trial that the instrument thus delivered by the defendant to Judge Mauzey in chambers at Sweetwater, Tex., about September 1, 1934, and now alleged and relied upon to raise the question of his disqualification to try this case, was never (prior to filing of the motion for a new trial, October 31st) filed in this cause in the district court of Haskell county. Hence, it is certain that at and prior to the trial of the case, there was no motion or pleading filed therein by the defendant raising any question of the disqualification of Judge Mauzey by reason of interest, bias, etc., or otherwise challenging his legal right to exchange benches with Judge Grissom and preside at the trial of the instant case in the district court of Haskell county and dispose of such business as might properly come before said court.

The record presenting these unchallenged facts compels the conclusion that presiding Judge Mauzey committed no error in failing to set down for...