"I. That the Washington & Lee University filed suit in the district court of Harris county, Tex., against Melvin Rouff, Joseph F. Meyer, Jr., and May Bering Fox Woods, as independent executors and executrix of the estate of Henry S. Fox, Jr., deceased, and styled Washington & Lee University v. Melvin Rouff et al., Executors, and numbered on the docket of said court 125430. That said cause came on for trial and was tried before Hon. Ewing Boyd, judge of the Fifty-Fifth district court of Harris county, Tex., on June 14, 1927, both plaintiff and defendants appearing by their respective attorneys of record, to wit, C. A. Teagle, of Houston, Tex., for the plaintiff, and Leon Sonfield, of Beaumont, Tex., and Robt. L. Sonfield and Wagner & Wagner, represented by Tamp W. Grobe, of Houston, Tex., of said law firm, for the defendants, and both the plaintiff and defendants having waived a jury, same was tried before Hon. Ewing Boyd as judge of said court, and after both plaintiff and defendants had presented their pleadings and evidence, the court announced that said cause would be taken under advisement, which was done.
"II. Petitioners would further show to this honorable court that there are four civil district courts in Harris county, Tex., with exclusive civil jurisdiction, to wit, the Eleventh district court, the Fifty-Fifth district court, the Sixty-First district court, and the Eightieth district court; that at the time of the filing of the above-described suit, and at all times subsequent thereto, and at this time, each and all of said district courts were then, and are now, duly organized, and each of them have a presiding judge, and the said Fifty-Fifth district court at all times herein mentioned has been within the terms of chapter 105 of the Acts of the Thirty-Eighth Legislature, designated in the Revised Statutes of 1925 as articles 2092 and 2093; that under and by virtue of article 199, subsec. 11, there are two terms of each of said four civil district courts in Harris county, Tex., in each year; the first term, which is known as the January-June term, begins on the first Monday in January and continues until and including the Sunday next before the first Monday in July; and the second term, which is known as the July-December term, begins on the first Monday in July and continues until and including the Sunday next before the first Monday in the following January.
"III. That on November 14, 1928, Hon. Ewing Boyd, in Chambers, signed and entered the following judgment in said cause:
"`On this the 14th day of November, A. D. 1928, came on to be heard the above-styled and numbered cause in the Fifty-Fifth district court for Harris county, Tex., and the plaintiff and defendants appearing in court by their respective attorneys, and having waived a jury, submitted all matters of fact, as well as of law, to the court, and the court having heard the evidence for the respective parties, the argument of counsel, and having duly considered the same, is of the opinion that the law and the facts are for the plaintiff.
"`It is therefore ordered, adjudged, and decreed by the court that the plaintiff, Washington & Lee University, a corporation under the laws of the state of Virginia, do have and recover of and from the estate of Henry S. Fox, Jr., and against Melvin Rouff, Jos. F. Meyer, Jr., and May Bering Fox Woods, as independent executors of the estate of said Henry S. Fox, Jr., deceased, the sum of $5,000, with interest thereon at the rate of 6 per cent. per annum from the 1st day of June, 1921, and all costs of court in this behalf incurred, and that plaintiff have its execution against the estate of said Henry S. Fox, Jr., deceased, and against the aforesaid independent executors as such, but not individually, for all sums awarded by this decree.
"`To which judgment of the court the defendants
then and there in open court excepted, and gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District at Galveston, Texas.'
"That counsel for defendant were not present when said judgment was signed and entered, and did not approve or consent to the entry of same, nor did counsel for defendants have notice of the signing and entry of said judgment.
"IV. That prior to the entry of said judgment two terms of the court had come and ended, to wit, the July-December term, 1927, and the January-June term, 1928, of said Fifty-Fifth district court; but from said judgment it appeared that said cause was tried on the said 14th day of November, 1928, although in truth and in fact said cause was tried on June 14, 1927, and prior to the entry of said judgment on November 14, 1927, there was no kind or character of entry on the docket of said court showing that said Hon. Ewing Boyd, as judge thereof, had passed upon the question and had determined upon the judgment to be entered; that attached hereto as Exhibit A and made a part hereof is the certificate of the clerk of the district court of Harris county, Tex., showing all entries made on said docket sheet.
"V. That at the time said judgment was signed and entered Leon Sonfield, who was leading counsel for defendants, and who had charge of the conduct of the above-styled suit, was seriously ill, and when notice of the signing and entry of said judgment was had an objection was immediately made that the trial judge was without jurisdiction in the premises, and said judgment is void.
"VI. That subsequently Robt. L. Sonfield, on behalf of his father, Leon Sonfield, and said firm of Wagner & Wagner, made objection to Hon. Ewing Boyd, judge of said court, that he was without jurisdiction to enter said judgment and same was void, which objection was of no avail, and then the objection was made that the judgment as signed and entered and dated the 14th day of November, 1928, did not reflect the true facts; that it appeared therefrom that the cause was tried on the said 14th day of November, 1928, when in truth and in fact same was tried on June 14, 1927, and that at least the judgment should be so corrected as to reflect the facts; that said Hon. Ewing Boyd, the judge of said court, thereafter on December 18, 1928, entered a second judgment in said cause nullifying and holding void the judgment previously entered and correctly reciting the facts; that attached hereto as Exhibit B and made a part hereof is certified copy of said judgment.
"VII. That on December 19, 1928, a motion for a new trial was filed, and in said motion for a new trial the first assignment of error reads as follows: `Because the judgment of the court is a nullity and of no effect or validity, because it affirmatively appears on the face of said judgment that the case was tried and submitted during the January-July term, 1927, of the Fifty-Fifth judicial district court of Harris county, Tex., to wit, on June 14, 1927; that after the trial of said cause, which was without a jury, the court took same under advisement; that said attempted judgment herein was not entered until December 18, 1928; that in the meantime, after the trial and submission of said cause, two terms of the Fifty-Fifth judicial district court of Harris county, Tex., had terminated and ended, and that this cause was not then again heard, but was decided on the facts as theretofore submitted, and that there was no agreement between counsel that such cause should be heard at any time other than at the January-July term, 1927, and that therefore the purported judgment herein is ineffective, void, and invalid.'
"That attached hereto as Exhibit C is certified copy of said motion for new trial.
"VIII. That on December 21, 1928, said motion for a new trial was overruled by Hon. Ewing Boyd, judge of said Fifty-Fifth district court, he announcing at the time that he was familiar with the contentions of the defendants that said judgment was void by reason of having been entered after the expiration of the term of court at which said cause was tried, and was fully convinced that there was nothing in said contention, and that no argument would avail.
"IX. Petitioners further say that by reason of the foregoing facts, and by that the judgments in this cause were entered after the expiration of the reason of the fact term of court at which said cause was tried, and in the absence of any agreement that judgment could be entered after the expiration of said term of court, and same having been entered by Hon. Ewing Boyd as judge of said court in chambers, Hon. Ewing Boyd, as judge of said Fifty-Fifth district court, was without jurisdiction to sign and enter said judgments, and same are void and of no force and effect.
"X. That Hon. Ewing Boyd is now and has continuously since the trial of this cause been judge of the Fifty-Fifth district court of Harris county, Tex.; that he has refused to grant defendants' motion for a new trial in said cause; that attached hereto as Exhibit D...
