San Angelo Nat. Bank v. Fitzpatrick

• Decision Date: 02 May 1895
• Citation: 30 S.W. 1053
• Parties: SAN ANGELO NAT. BANK v. FITZPATRICK et al.
• Court: Texas Supreme Court

30 S.W. 1053

SAN ANGELO NAT. BANK v. FITZPATRICK et al.

Supreme Court of Texas.

May 2, 1895.

Application for writ of error to court of civil appeals of Third supreme judicial district.

Application for writ of error by the San Angelo National Bank to review the judgment of the court of civil appeals (21 S. W. 912) in affirming a judgment of the circuit court rendered in an action brought by the bank against J. H. Fitzpatrick and others. Application refused.

Joseph Spence, Jr., for applicant.

GAINES, C. J.

The suit in which this application for a writ of error is made was brought in the county court for an amount over which that court has exclusive jurisdiction. It was filed on the 10th day of June, 1892, which was after the recent amendments to the constitution had gone into effect. The cause was continued from term to term, until, in January, 1893, it was transferred to the district court, on account of the disqualification of the county judge. On the 25th of May, 1893, it was tried in the latter court, and resulted in a judgment in favor of two of the defendants, from which judgment the applicant appealed. The court of civil appeals affirmed the judgment.

As one of the grounds upon which the writ of error is sought, it is insisted in the application that the court of civil appeals erred in holding that the district court had jurisdiction to hear and determine the case. The decision of the question depends upon the construction of the recent amendments to article 5 of the constitution, and upon the validity of the act of April 26, 1893, amendatory of article 1139 of the Revised Statutes. The original article provided that, in case the county judge was disqualified, the cause should be transferred to the district court. Rev. St. art. 1139. The act of 1893 made it the duty of the judge presiding in the county court, in case he was disqualified to try a cause, and in case the parties failed to agree upon a special judge, to certify the facts to the governor, and made it the duty of the governor thereupon to appoint a special judge to try the cause, but also contained a proviso which reads as follows: "That all cases heretofore transferred to the district court from the county court on account of the disqualification of the county judge, shall be considered lawful, and the district courts to which such causes have been transferred, shall retain jurisdiction thereof." Laws 1893, p. 76. This act took effect from its approval, and was in operation when this case was tried in the district court.

Two questions suggest themselves: (1) After the adoption of the amendment to section 16 of article 5 of the constitution, was it lawful to transfer a case from the county to the district court on account of the disqualification of the county judge? and (2) is the proviso above quoted from the act of April 26, 1893, valid? Original section 16 of article 5 of the constitution contained this provision: "Any case pending in the county court which the county judge may be disqualified to try, shall be transferred to the district court of the same county for trial; and when there exists any cause disqualifying a county judge for the trial of a cause of which the county court has jurisdiction, the district court of such county shall have original jurisdiction of such cause." The corresponding provision in the amended section 16 reads as follows: "When the judge of the county court is disqualified in any case pending in the county court, the parties interested may by consent appoint a proper person to try said case, or upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law." Does this imperatively require the legislature to provide for the appointment of a special judge when the parties fail to agree upon a judge, or is it simply permissive? The question is not without difficulty, but we are of opinion that the intention of the amendment was merely to...