Schultze v. McLeary

• Decision Date: 26 February 1889
• Citation: Schultze v. McLeary, 11 S.W. 924 (Tex. 1889)
• Parties: SCHULTZE <I>v.</I> McLEARY.
• Court: Texas Supreme Court

11 S.W. 924

SCHULTZE

v. McLEARY.

Supreme Court of Texas.

February 26, 1889.

Application for mandamus.

G. C. Altgelt, for appellant. J. H. McLeary, pro se.

STAYTON, C. J.

There was an action pending in the district court for Bexar county, in which the applicant was the plaintiff and L. Orynski one of many defendants. The wives of the district judge and Orynski were sisters, and on this ground, during the first term after the action was brought, the parties not having agreed upon a special judge, the district judge certified his disqualification to the governor, who appointed J. H. McLeary to try the cause. Under this appointment McLeary qualified, and tried the cause, but, on application for a new trial, held that the district judge was not disqualified, and that for this reason his own appointment was void. It seems also to have been held that an entire term must pass, during which parties have failed to agree upon a special judge, before the presiding judge is authorized to certify his disqualification to the governor, and ask the appointment of a person to try the cause. After setting aside the judgment entered by him, the special judge refused to proceed further with the cause, basing his refusal on the ground that his appointment was unauthorized.

The matter now before us is an application for mandamus to compel the special judge appointed to try the cause. The refusal of the special judge further to act is based on the ground that the facts existing did not disqualify the district judge, and that for this reason there was no authority to appoint a special judge. The constitution provides that "no judge shall sit in any case * * * where either of the parties may be connected with him by affinity or consanguinity within such degree as may be prescribed by law." Const. art 5, § 11. The legislature has fixed the disqualifying degree at the third. Rev. St. art. 1090. It is denied that the plaintiff in the action the special judge was appointed to try, was related to the defendant therein, whose wife was the sister of the wife of the district judge, by affinity in any degree; and we have understood that in such cases no relationship of that character exists. It does not follow from this, however, that the judge was not disqualified, and it ought not to be held upon mere conjecture that the certificate of disqualification sent to the governor was not true. It may be that the judge and Orynski were not related by affinity at all, but if the claim represented by the latter...