Seabrook v. First Nat. Bank

• Decision Date: 18 November 1914
• Docket Number: (No. 5350.)
• Citation: Seabrook v. First Nat. Bank, 171 S.W. 247 (Tex. App. 1914)
• Parties: SEABROOK et al. v. FIRST NAT. BANK OF PORT LAVACA.
• Court: Texas Court of Appeals

171 S.W. 247

SEABROOK et al. v. FIRST NAT. BANK OF PORT LAVACA.

(No. 5350.)

Court of Civil Appeals of Texas. San Antonio.

November 18, 1914.

Rehearing Denied December 9, 1914.

Appeal from District Court, Calhoun County; John M. Green, Judge.

Action by the First National Bank of Port Lavaca against L. Seabrook and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

R. L. Daniel, of Victoria, for appellants. Wilson & Hamilton, of Port Lavaca, for appellee.

FLY, C. J.

This is a suit by appellee against L. Seabrook and J. J. Randle on a promissory note for $1,500, executed by appellants, and payable to appellee on demand, bearing 10 per cent. interest from date and 10 per cent. attorney's fees. Appellants answered that the execution of the note grew out of a transaction between them and W. C. Noble and Willett Wilson in connection with the purchase, development, and sale of properties which were certain additions to the town of Port Lavaca; that their agreement with Noble and Wilson, for themselves and as officers of the bank, was that the proceeds from the sale of lots should be deposited in the bank in the name of J. J. Randle, and that all vendor lien notes and other securities should be deposited in the same way, and that the first money received from the sale of lots should be applied to the payment of the note sued on; that large sums of money and securities realized from the sale of lots had been deposited in the bank, and the latter had in its possession more than sufficient funds to pay off the note, and, if such funds were not in the bank, they had been appropriated by Noble and Wilson, and it was prayed that they be made parties. Appellee filed a general demurrer and 33 special demurrers to the answer, which were sustained, and judgment rendered in favor of appellee for the amount of the note, interest, and attorney's fees.

On motion for a new trial, appellants assailed the judgment of the court on the ground of disqualification of the judge. The judge testified:

"I am the district judge of the Twenty-Fourth judicial district, before whom the cause of First National Bank of Port Lavaca v. L. Seabrook and J. J. Randle (No. 1707) was tried. My wife and the wife of W. C. Noble, whom the defendants seek to make a party to said cause, are first cousins."

In other words, the wife of the district judge and Mrs. Noble are related to each other within the third degree, and if Mrs. Noble's interest in the community estate of herself and husband would be affected by a judgment against him, even to the extent of costs, the trial judge was disqualified. Her interest in any community property would undoubtedly be affected by a judgment against her husband. Schultze v. McLeary, 73 Tex. 92, 11 S. W. 924; Duncan v. Herder, 57 Tex. Civ. App. 542, 122 S. W. 904; Jirou v. Jirou, 136 S. W. 493. In the case of Duncan v. Herder the Court of Civil Appeals declined to follow the case of Winston v. Masterson, 87 Tex. 200, 27 S. W. 768, and a writ was refused by the Supreme Court. The Winston-Masterson Case seems to be in conflict with other opinions of the Supreme Court on the same subject.

Noble was not related to the district judge by...