Slaven v. Wheeler

• Decision Date: 16 October 1882
• Docket Number: Case No. 453.
• Citation: 58 Tex. 23
• Parties: ELIZABETH SLAVEN v. JUBE WHEELER ET AL.
• Court: Texas Supreme Court

58 Tex. 23

ELIZABETH SLAVEN

v.JUBE WHEELER ET AL.

Case No. 453.

Supreme Court of Texas.

Oct. 16, 1882.

APPEAL from Grayson. Tried below before the Hon. Joseph Bledsoe.

Appellant brought this suit against appellees February 15, 1881, to recover the land described in the petition, claiming the same as her homestead, which had been sold and conveyed by her husband without her knowledge or consent, and making her husband a party defendant.

Wheeler answered by general and special exceptions, plea of not guilty, statute of limitations and stale demand, and also suggested improvements made in good faith.

December 23, 1881, the cause was tried by the court without a jury, and a judgment was rendered against the appellant. Upon the trial an objection was made to the presiding judge, on the ground that he had been of counsel in the case, and evidence was introduced by the parties upon that issue. The judge found, and so ruled, that he was not disqualified; to this ruling appellant excepted, and assigned that ruling as error.

Finley & Pasco, for appellant.

Hare & Head, for appellee.--The mere fact that a party to a suit had, years before, spoken to the judge, as an attorney, about the facts in his case, would not disqualify the judge; but to do this he would have had to have been regularly employed as an attorney in the particular case. R. S., art. 1090; Taylor v. Williams, 26 Tex., 586;Davis v. The State, 44 Tex., 523.

WATTS, J. COM. APP.

In our opinion this appeal should be disposed of upon the issue of the disqualification of the judge who presided in the court below, without any reference to the merits of the case.

The plaintiff testified that she had, some ten years before the trial, consulted Judge Bledsoe, who was then a practicing attorney and a member of the firm of Hare & Bledsoe, upon the questions involved in this case, and that he had then advised her with reference to the matter, but that she did not make any agreement with them as to the fee.

Charles Slaven, the son of the plaintiff, testified that he was about twenty-four years old; that ten or twelve years previously, he came to Sherman with the plaintiff to see an attorney about bringing suit for her homestead; that they went to the office of Hare & Bledsoe, on the south side of the square, but that he was small and did not remember what was said.

J. B. Slaven, one of the defendants, and the husband of the plaintiff, testified that during his absence, about eleven years before the trial, the plaintiff and her son came to Sherman to see an attorney about bringing suit against Wheeler for her homestead; that a short time thereafter he and the plaintiff came to Sherman to see Hare & Bledsoe in regard to the matter, and that he stated the case fully to Judge Bledsoe, who advised them what to do, and that the plaintiff would then have a good case, and that the agreement was that she was to give them one-half the land to recover it.

Wheeler, one of the defendants, testified that about eleven years prior to the trial he heard that plaintiff was claiming the land, and that she then told him that she had been to see attorneys about bringing the suit, but did not name the attorneys.

Silas Hare testified that he was a member of the firm of Hare & Bledsoe; that he could not state anything about being consulted by Slaven or Mrs. Slaven in regard to the matters involved in this suit. But since hearing the testimony, he seemed to have a faint or indistinct recollection of hearing something about the matter, or being consulted in the case, but it was like a dream.

Judge Bledsoe then made a statement, which does not seem to have been made under oath, to the effect that he had no recollection of ever having been spoken to about this suit or any of the matters referred to by the plaintiff or her husband. Plaintiff then objected to Judge Bledsoe's sitting in the case, which was overruled, and the plaintiff excepted. There is copied into the record a statement by the judge, which perhaps may have been intended as an explanation of the exceptions taken by plaintiff. That statement is as follows:

“As to the statement on the part of Mr. Slaven that I had ever agreed to bring a suit for his wife, or had made a contract to do so, for half of the land, I know to be false, and that no such conversation was ever had.

+--------------------------+
                ¦(Signed)¦JOSEPH BLEDSOE,  ¦
                +--------+-----------------¦
                ¦        ¦District Judge.” ¦
                +--------------------------+
                

Among the disqualifications prescribed by our constitution is that no judge shall sit in any case where he shall have been of counsel. In the application of that provision some doubt arises out of the true signification to be assigned to the word “case.” Is it true that, to work a disqualification under that provision of our organic law, the judge must have been of counsel in a cause pending in court at the time of his professional connection with it? For it must be admitted that the usual legal signification of the word is a contested question before a court of justice. Bouvier's Law Dictionary, word “““Case.”

Assigning it that meaning in practice would result in this: that without regard to what connection the...