Harris v. Musgrave

• Decision Date: 12 June 1888
• Citation: Harris v. Musgrave, 9 S.W. 90, 72 Tex. 18 (Tex. 1888)
• Court: Texas Supreme Court
• Parties: HARRIS <I>et al.</I> <I>v.</I> MUSGRAVE.

9 S.W. 90

HARRIS et al.

v. MUSGRAVE.

Supreme Court of Texas.

June 12, 1888.

Commissioners' decision. Appeal from district court, Atascosa county; W. W. HERRON, Judge.

Harris and others brought an action against Musgrave on a promissory note, in which defendant pleaded in reconvention. The district judge being disqualified, Hon. W. W. HERRON was appointed special judge to try the case. At the regular term the cause was called and tried by the special judge in the absence of plaintiffs, against whom judgment was rendered for $645, and interest. Plaintiffs then brought this suit to enjoin the levy of the execution which had been issued, and to vacate the judgment, and obtain a new trial. Defendant answered by general demurrer and special exceptions. Judgment was entered sustaining the exceptions, and dismissing the petition, from which plaintiffs appeal.

Minter & Altgelt, for appellants. W. J. Bowen, for appellee.

ACKER, J.

Hon. D. P. Marr, having been counsel for appellee, certified his disqualification, and the failure of the parties to agree upon a special judge, to the governor, upon which Hon. W. W. HERRON was appointed special judge to try the case. The special judge took the oath of office, November 22, 1883, but no record was made of his qualification until the May term, 1884. November 18, 1884, the case was regularly called for trial by the special judge, neither appellants nor their counsel being present, and the trial proceeded to judgment in favor of appellee and against appellant L. B. Harris for $645, upon which execution was issued in February, 1885, and placed in the hands of the sheriff of Tom Green county, where appellants resided. This suit was brought March 6, 1885, to enjoin the levy of the execution, to vacate the judgment upon which it was issued, and to obtain a new trial. Hon. W. W. HERRON, special judge, called this case for trial on April 9, 1885, sustained demurrers to the petition, dissolved the injunction, and dismissed the suit, from which judgment this appeal is taken. It is contended that this is another and different case from that which the special judge, HERRON, was commissioned to try, and that his appointment to try the original suit did not confer upon him authority to try and determine this cause. In cases where the district judge is recused, the failure of the parties to report their agreement upon a special judge by the time the case is reached in the regular order of business authorizes the presiding judge to certify his disqualification to the governor, together with the fact that the parties have failed to agree upon a special judge. It then becomes the duty of the governor to appoint a special judge to try and determine the cause. Rev. St. art. 1092. We think the special judge who qualifies under such appointment has full authority to hear and determine, not only the...