Winston v. Masterson

• Decision Date: 28 June 1894
• Citation: Winston v. Masterson, 27 S.W. 768, 87 Tex. 200 (Tex. 1894)
• Parties: WINSTON v. MASTERSON et al.
• Court: Texas Supreme Court

27 S.W. 768

WINSTON v. MASTERSON et al.

Supreme Court of Texas.

June 28, 1894.

Certified questions from court of civil appeals of fifth supreme judicial district.

Action by H. Masterson and others against L. Winston. On appeal by defendant to the court of civil appeals, a question was certified to the supreme court.

M. S. Munson, Jr., and L. R. Bryan, for appellant. H. Masterson, for appellees.

PER CURIAM.

C. Davis, represented by H. Masterson, as his attorney, recovered a judgment against L. Winston in a county court, of which Hon. A. R. Masterson, a brother of the attorney, was the judge. H. Masterson did not appear as a party to the cause, but he had a contract with the plaintiff under which he was to receive for his services a contingent fee equal to one-half of the sum to be recovered. No question of disqualification of the judge was raised on the trial, nor was the judge aware that his brother had an agreement under which he was to receive a contingent fee. This suit was brought to enjoin the enforcement of the judgment on the ground that the county judge was disqualified to try the cause; and whether he was disqualified, under the facts existing, is the question certified.

The constitution declares that "no judge shall sit in any case wherein he may be interested, or 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 judge and the attorney were connected within the degree prescribed by law, and the question arises whether the attorney was a "party" to the suit, within the meaning of the constitution, for if he was not the judge is not disqualified. In ascertaining the meaning of words used in a constitution or statute, it is the duty of a court to look to their meaning as used in the particular connection, and to apply that meaning when, in reference to a matter in which a word has a technical signification, it is proper to attach that meaning to it. The words "party" and "parties," when used in connection with suits or actions, are technical words, the meaning of which is as certainly fixed as that of any words in the language. In Bank v. Cook, 4 Pick. 411, it was said: "We are to ascertain the true meaning of the legislature in the use of the words of their statute, and we are to consider them, when legislating upon subjects relating to courts and legal process, as speaking technically, unless, from the statute itself, it appears that they made use of the terms in a more popular sense. The word `party,' there, is unquestionably a technical word, and has a precise meaning in legal parlance. By it is understood he or they by or against whom a suit is brought, whether at law or in equity; the party plaintiff or defendant, whether composed of one or more individuals, and whether natural or legal persons. They are parties in the writ, and parties on the record, and all others who may be affected by the writ, indirectly or consequentially, are persons interested, but not parties." This is the meaning attached to the...