Johnson v. Johnson

• Decision Date: 01 November 1905
• Parties: JOHNSON v. JOHNSON.
• Court: Texas Court of Appeals

89 S.W. 1102

JOHNSON v. JOHNSON.

Court of Civil Appeals of Texas.

November 1, 1905.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Suit for divorce by A. C. D. Johnson against Louis St. J. Johnson. From a judgment for plaintiff, defendant appeals. Reversed.

Don A. Bliss and McReynolds & Hay, for appellant. C. H. Smith and A. L. Beaty, for appellee.

NEILL, J.

This suit was brought by appellee against appellant for a divorce and the custody of minor children of the parties. The grounds for divorce alleged were cruel treatment and outrages by appellant toward the appellee of such a nature as to render their living together insupportable. The answer consisted of denial that plaintiff was an actual bona fide inhabitant of the state of Texas, a general denial, and a plea of res adjudicata. The trial resulted in a decree of divorce in favor of plaintiff, awarding her the custody of the children.

The first and second assignments raise the question whether the judge who tried the case was disqualified, by reason of having been counsel in the case, to try it. The Constitution provides that no judge shall sit in a case wherein he shall have been counsel. Article 5, § 11. We will remark, before considering the question, that the statute does not make the disqualification of a judge a ground for transferring a cause pending in his court to another. Rev. St. 1895, arts. 1069, 1070. If, however, it appears from the record of the trial of the cause that the judge trying it was, under the constitutional inhibition, disqualified from doing so, though from the proceedings on a motion to transfer the cause to another court, the judgment pronounced in such cause should be declared void and of no effect. Chambers v. Hodges, 23 Tex. 104; Newcome v. Light, 58 Tex. 141, 44 Am. Rep. 604; Burks v. Bennett, 62 Tex. 277; Gains v. Barr, 60 Tex. 676. The evidence touching the judge's disqualification was adduced, both on a motion to transfer the cause and on a motion for a new trial setting up such disqualification. It appears from such evidence that prior to the institution of this particular suit the appellee had sued appellant in the district court of Grayson county for a divorce, and that the grounds alleged as her cause in this case embraced all the matters alleged in the previous suit, which had been decided in favor of appellant a short time before this one was instituted; that appellant's plea of res adjudicata in this cause was based upon the judgment rendered in his favor in the other case; and that upon the trial of this cause such plea was relied upon by appellant as a defense to plaintiff's alleged cause of action, evidence introduced thereon, and the issue made by such plea and evidence one of the issues to be determined; that when the previous suit was instituted, and while pending, the Hon. B. L. Jones, the judge who tried this cause, was employed as an attorney at law by A. L. Beaty, the attorney for plaintiff in that case and one of her counsel in this, and during and in pursuance of such employment was in Mr. Beaty's office; that during the course of such employment, while Mr. Beaty was absent, when the plaintiff was in his office, Judge Jones talked to her about the case twice.

As to what was said on the occasions appears from the questions to and answers of his honor upon the motion for a new trial in this cause. They are as follows: "Q. Were you in the employment of A. L. Beaty? A. Yes; there was an understanding for employment. Q. During that time did the plaintiff ever visit the office, asking for advice? A. She was up there a number of times; yes, sir. Q. Was she there at any time when Mr. Beaty was absent? A. I think twice. Well, no, she was there a number of times, but the only times I talked to her was twice. Q. On the first occasion that your honor talked with the plaintiff, what occasion was that? A. A deposition of a negro girl was being taken—well, I don't know that, only from hearsay—but her representation to me was— Do you want that? Q. Yes, sir. A. That the deposition of a negro girl, a witness in the case, was being taken in the office of J. Q. Adamson by J. Q. Adamson, and she came to me and made a report of what she believed to be the conduct of one of the attorneys on the other side. Q. Did she ask any advice about it? A. No, I don't think she asked any advice about it. I talked to her about the matter. Q. Did you advise her in any way? A. Yes. Q. What did you state to her? A. That I thought she must be mistaken; that I didn't think the gentlemen would be guilty of such conduct as that, and I told her it didn't amount to anything. She was very much excited. I tried to quiet her down. That is my recollection. That is all that transpired. That is all I recollect. Q. On the second occasion? A. Well, I can't remember what took place the second time. Q. Wasn't it stated that interrogatories had been propounded to her, and she asked for advice as to whether she should answer those interrogatories? A. I am not certain about that. If there is anything to call my recollection to it, I am not certain. I couldn't say there was. I have no distinct recollection, except advising her once. But I am satisfied I talked to her twice. Still, as to what took place the second time, I have no distinct recollection. Q. Is your honor positive you didn't advise her about answering those interrogatories? A. No, because I had no distinct recollection. If she had asked me in reference to the matter, I would have told her to have done so; but I had no recollection of her asking me about that. The fact of the business is, I have now no recollection of her ex parte deposition being taken. I knew nothing of the case, and never talked it over with Mr. Beaty in my life. Q. You don't know whether you advised her on that occasion with reference to the case in any respect or not— the second occasion? A. No, sir; that is, I said I have no distinct recollection of her being there. I just have a general recollection that I talked to her twice. I see Mr. Hay made an affidavit. If there is anything he could remind me of and refresh my recollection— Mr. Hay: The statement your honor made to me was with reference to having...