Texas & Pacific Coal Co. v. Ready

• Decision Date: 08 November 1917
• Docket Number: (No. 736.)
• Citation: 198 S.W. 1034
• Parties: TEXAS & PACIFIC COAL CO. v. READY.
• Court: Texas Court of Appeals

198 S.W. 1034

TEXAS & PACIFIC COAL CO. v. READY.

(No. 736.)

Court of Civil Appeals of Texas. El Paso.

November 8, 1917.

Appeal from District Court, Erath County; J. B. Keith, Special Judge.

Action by Alvin Ready against the Texas & Pacific Coal Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. J. Oxford and Chandler & Pannill, all of Stephenville, and J. R. Stubblefield, of Eastland, for appellant. Hickman & Bateman, of Stephenville, G. B. Turner, T. J. Powell, and Dee Estes, all of Ft. Worth, for appellee.

Statement of Case.

HIGGINS, J.

The Texas & Pacific Coal Company appeals from a judgment rendered against it in the district court of Erath county. Hon. W. J. Oxford was the regular judge of that court. The case was tried before Hon. J. B. Keith, special judge elected by the practicing lawyers of the court. The facts in connection with the election of Judge Keith are shown in the court minutes of his election. The minutes read:

"Judge W. J. Oxford, district judge of the Twenty-Ninth judicial district, opened his court on the Monday for the week beginning June 19, 1916, in the regular way, and stated to the bar that there are a number of cases against the Texas & Pacific Coal Company, set for the week, but that he, Judge Oxford, was unwilling to try those cases for the reason that he intended to tender his resignation on September 1st following, and accept employment as attorney for said defendant company. Counsel for the coal company, being present in the court, objected to the court's proposed action, and the judge thereupon suggested to the attorneys present that it would be necessary to elect a special judge, and stated that he, Judge Oxford, had a right to refuse to try any cases against the Texas & Pacific Coal Company, and so feeling and believing, was unwilling to try said cases, and he declined and refused to try the cases set for that week against the Texas & Pacific Coal Company. The following cases against the Texas & Pacific Coal Company were set for trial in said week beginning June 19, 1916. No. 4093, Senti Pacifico v. T. & P. Coal Co. No. 4092, John C. Tidwell v. Same Defendant. No. 4091, Floyd Freeman v. Same Defendant. No. 4090, Gottfried Grabner v. Same Defendant. No. 4158, Alvin Ready v. Same Defendant. No. 4131, Jim Garbugio v. Same Defendant. Judge Oxford read article 1678, Vernon's Sayles' Texas Civil Statutes, and suggested that under that article the attorneys present could proceed to elect a special judge to try the cases set for that week against the Texas & Pacific Coal Company, and thereupon the said W. J. Oxford vacated the bench, and the election of the Hon. J. B. Keith was made by the attorneys present, in accordance with the statute governing election of special judges, and he, the said J. B. Keith, then proceeded to try said cases set for said week during the remainder of said week against the Texas & Pacific Coal Company. And during the remainder of that week the said W. J. Oxford remained in his office in the courthouse and transacted other business on other matters as such district judge, and after the said W. J. Oxford vacated said bench the following proceedings were had: On this the 19th day of June, A. D. 1916, during a regular term of the district court of the Twenty-Ninth judicial district in and for Erath county, Tex., Hon. W. J. Oxford, being unwilling to try the cases set for that week, to which the Texas & Pacific Coal Company, was a party, vacated the bench, and engaged in the transaction of other business pertaining to his office in the courthouse. The following proceedings were had, to wit: A meeting of the Stephenville bar being called for the purpose of electing a special judge to preside over and discharge the duties of the said district judge in the district court of Erath county, Tex. The following members and practicing attorneys of the Stephenville bar present and participating in said meeting, to wit: R. L. Thompson, J. A. Johnson, Judge J. B. Keith, F. H. Chandler, G. O. Bateman, Wm. Pannill, W. W. Moores, James W. Swain, and B. E. Cook, Thereupon W. W. Moores of the Stephenville bar, was put in nomination and unanimously elected chairman of said bar meeting, and caused the proclamation of the purpose of said bar meeting to be made as the law directs, by the sheriff of Erath county, Tex., and the district clerk then and there made a list of the lawyers present and practicing at this bar. Thereupon Judge J. B. Keith of the Stephenville bar was put in nomination for special judge. Judge J. B. Keith received 10 votes when said ballots were counted, Judge W. W. Moores received 1 vote for said special judge, and after the votes had been counted and registered by the district clerk of Erath county, Tex., thereupon said district clerk proceeded to administer to J. B. Keith, and did administer to him as duly elected special judge of said district court of said county, the oath of office as prescribed by law. To which action of Hon. W. J. Oxford, and the election of a special judge to try the cases against the Texas & Pacific Coal Company the said Texas & Pacific Coal Company, through its counsel, then and there in open court to the said W. J. Oxford, Judge, excepted, on the ground that Judge Oxford was not disqualified and was not absent, unable or unwilling to hold court, but had simply declined to try the cases against the Texas & Pacific Coal Company, which objection was overruled by the court, to which action of the court the said Texas & Pacific Coal Company, through its counsel then and there in open court excepted."

Opinion.

Upon the threshold of this case, we are met with the contention that the judgment rendered is a nullity for lack of authority on the part of the special judge to act as such. The right of the practicing lawyers to elect a special judge is governed by article 1678, R. S., which confers authority upon them when the regular judge "shall be absent, or shall be unable or unwilling to hold the court." There is no contention, nor is it a fact, that the...