First Nat. Bank v. Herrell

• Decision Date: 16 December 1916
• Docket Number: (No. 7650.)
• Citation: 190 S.W. 797
• Parties: FIRST NAT. BANK OF EMORY v. HERRELL.
• Court: Texas Court of Appeals

190 S.W. 797

FIRST NAT. BANK OF EMORY v. HERRELL.

(No. 7650.)

Court of Civil Appeals of Texas. Dallas.

December 16, 1916.

Appeal from Rains County Court.

Suit by J. B. Herrell against the First National Bank of Emory. From a judgment of the county court for plaintiff on appeal, and from a judgment of the justice court for plaintiff, defendant appeals. Reversed and remanded.

W. B. Wynne, of Wills Point, and O. H. Rodes and W. H. Clendenin, both of Emory, for appellant.

TALBOT, J.

This suit was instituted in the justice court of precinct No. 1, Rains county, Tex., by the appellee to recover of the appellant the sum of $53 as usury, alleged to have been charged appellee on three certain promissory notes set out in his pleadings. The appellant answered by a general denial, and by way of a cross-action or plea in reconvention alleged, among other things:

"That it is engaged in the banking business, and the life and interest of its business is dependent largely upon its dealings with the citizenship of Rains county and its honesty and fair dealings with its customers is one of its chief assets. And defendant charges that for the purpose of destroying this defendant's business this plaintiff has entered into a conspiracy with a large number of citizens of Rains county to bring suits against this defendant, charging it with dealing unfairly with its customers, and thereby destroying its business and its business interests. And that in pursuance of this conspiracy this suit was filed against it. That W. W. Berzett and J. B. Allred have joined with this plaintiff as coconspirators to bring this suit, W. W. Berzett agreeing to act as counsel, agreeing to accept as compensation a part of whatever moneys could be obtained from this defendant. That this is done solely and purely for the purpose of destroying this defendant's business and injuring it. And in pursuance of this conspiracy and agreement this suit was brought by this plaintiff willfully and maliciously to injure this defendant, and that by the bringing of this suit this defendant has been injured and damaged in the sum of $125."

In this pleading appellant asked that W. W. Berzett and J. B. Allred be made parties defendant and served with citation, and that it have judgment against all of the defendants in its said cross-action in the sum of $125. It seems that the justice of the peace refused to have the said W. W. Berzett and J. B. Allred served with citation, and the case went to trial on the appellee's pleading and the appellant's cross-action as to appellee, and the trial resulted in a judgment for the appellee in the sum of $53. From this judgment the appellant appealed to the county court of Rains county, in which court a trial without a jury resulted again in favor of the appellee for the sum of $53, and the appellant perfected an appeal to this court.

There is no appearance in this court on the part of the appellee, and the case was submitted on the brief of appellant.

Numerous assignments of error are presented, but we shall not undertake to state and discuss them in detail. The first question for decision is whether or not the county judge erred in not holding himself disqualified to try the case. The record as pointed out by the appellant discloses that before the parties announced ready for trial the appellant, by proper pleadings, suggested to the trial judge, the Hon. J. B. Allred, that he was disqualified to sit and try the case, because appellant had, in its pleadings in the justice court and in the county court, over which said judge was presiding, made him a party defendant to the cross-action filed in the cause, and because of his relationship by marriage to J. K. Woosley, one of the sureties on the appellant's appeal bond filed in the justice court for removing the cause by appeal from that court to the county court, and that thereupon the said judge admitted that he was a second cousin to the said Woosley's wife, who was then living, but refused to hold himself disqualified to try the case. It is the law of this state that no judge of the district or county court shall sit in any case wherein he may be interested, or where either of the parties thereto may be connected with him by affinity or consanguinity within the third degree. Judge Allred, who presided at the trial of this cause, being related to J. K. Woosley, one of the sureties on the appellant's bond, against whom judgment might and should have been rendered by reason of his undertaking as such surety for the amount recovered by appellee against appellant, should have recused himself and declined to make any order in the case.

But if he was not disqualified by reason of his relationship to said surety, he had, by appellant's pleadings, been made a party to the suit, and for that reason he was and should have held himself disqualified to sit in the case. The allegations of the cross-action were sufficient to show a cause of action against Judge Allred, of which he had actual knowledge, and the record fails to disclose that appellant's purpose in making him a party thereto was to disqualify him from trying the original suit.

The complaint made in the third assignment of error, to the effect that the county court erred in overruling appellant's plea in abatement or nonjoinder of necessary parties plaintiff, cannot be considered, because it does not appear, except by bill of exception, that said plea was called to the attention of the county court and action taken thereon. If this plea was passed on by the trial court, an order should have been made and entered of record, showing what disposition was made of it, and a copy of that...