Longoria v. Longoria, 12692
| Decision Date | 31 March 1954 |
| Docket Number | No. 12692,12692 |
| Citation | 267 S.W.2d 426 |
| Parties | LONGORIA v. LONGORIA. |
| Court | Texas Court of Appeals |
Charles G. Lyman, Corpus Christi, A. J. Vale, Rio Grande City, L. Hamilton Lowe, Austin, for appellant.
Gerald Weatherly, Falfurrias, Sawnie B. Smith, Edinburg, John A. Pope, Jr., Rio Grande City, for appellee.
This is an election contest and the appeal concerns the validity of the election of a special judge under the provisions of Articles 1887, 1888, 1889, 1890 and 1891, Vernon's Ann.Civ.Stats. The parties are rival claimants to the office of County Commissioner of Precinct No. 3, Starr County. The Special Judge, after hearing full evidence, declared the contestant, Armando Longoria, to be the duly elected County Commissioner. The contestee and his attorneys were not present at the election of the special judge nor the trial, but they timely filed a motion for new trial and a motion to disqualify the special judge, both of which the special judge heard and overruled.
Appellant contends that the election proceedings were void, because the district judge did not 'fail or refuse to hold the court' in Starr County, within the meaning of Article 1887. Starr County is one of the four counties in the 79th Judicial District, and that district has continuous terms of court, that is, successive terms, without more than two days intervening between the end of one term and the commencement of another. Terms, consequently, run concurrently throughout all the counties in the district. Article 199, § 79, Vernon's Ann.Civ.Stats. This election contest was filed shortly after the General Election in November, 1952. It has been repeatedly set and re-set. It was set for trial in June of 1953, and was then postponed until July 30th, at which time a special session of the court had been called by the regular district judge of the district for the purpose of disposing of this contest and several other cases pending on the docket in Starr County.
On the afternoon of July 29, 1953, the regular judge phoned the district clerk and the attorneys for the respective parties, stating that he would be unable to attend court in Starr County on July 30th, and that he did not know on what date he would be able to dispose of the case. There was no postponement to any future date. Contestant's attorneys alerted a number of attorneys residing in Hidalgo County who customarily practice law in Starr County, and asked them to be present on the morning of July 30th for the purpose of electing a special judge. On the morning of July 30th, lawyers from both Hidalgo and Starr Counties were present in the court room, and in the absence of the district judge they proceeded to elect Royce A. Oxford, Esq., as special judge.
In order to properly co-ordinate and dispose of the business of the 79th District, the statute provides:
'The Judge of said Court in his discretion may hold as many sessions of Court in any term of the Court in any county as is deemed by him proper and expedient for the dispatch of business.' Art. 199, § 79, supra.
That provision contemplates the setting of a session of court for dates in the future upon proper order by the judge. There was a session of court set in Starr County commencing on the morning of July 30th. The instant contest and other matters were set for trial.
Article 1887, supra, provides:
'Should the judge of a district court on the first or any future day of a term, fail or refuse to hold the court, the practicing lawyers of the court present may elect from among their number a special judge who shall hold the court and proceed with the business thereof.'
A session of court is set by proper order of the court, and after a day has been set for a session, such setting can only be set aside or postponed by a subsequent order of court. Prior to the 1949 amendment to Article 5, § 7, of the Constitution, Vernon's Ann.St. proceedings relating to a cause pending in a particular county had to be conducted in the county seat of such county. Berner v. Berner, Tex.Civ.App., 146 S.W.2d 1017. The Constitution was, however, amended so as to provide, 'The Court shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by low.'
In 1951, the Legislature made provision for the rendition of orders relating to a cause outside the county where the case was pending and specifically provided that the district judge 'may sign any order or decree in any case pending for trial or on trial before him in any county in his District at such place as may be convenient...
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Longoria v. Longoria, 12868
...July, 1954. This primary election resulted in a contested election which was decided in favor of Armando Longoria. See Longoria v. Longoria, Tex.Civ.App., 267 S.W.2d 426. These same parties were also rival candidates for this same office in 1952, which also resulted in a primary election co......
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Ex parte Jones, 28730
...under Articles 1887-1893, V.A.C.S., to elect a special judge because no session of court had been ordered by the judge. Longoria v. Longoria, Tex.Civ.App., 267 S.W.2d 426. As in that case, the situation here is similar to that which existed before the advent of continuous terms where the re......