*1
SOME
DUNN
NÁT.
ant
has been said before with reference to
time,
erred to its
with
fore overruled.
plaintiff
worked
the
compete
clined
Plaintiff in error’s first
would
in error was
defendant
113 S.
Webb Co.
ing
110
record, which,
the defendant
in error
support
fected its
is now
monthly.
Tex. Civ.
Monroe
in favor of
contract
appeal
ror,
1914,
assails the action of the lower
ror
ten answer was filed
tice
month, and that
cepted,
ford
which the court
Co.,
Spalding
tion for writ of
ruary 3,
ror’s
county court, resulting again
trial was
of the defendant
count. On
court
1914, said cause was tried
ferson
for.
elaborating
[2]
While
[1]
fact,
bond,
organization
right
.court.
S. W. 560.
contended
law,
and that
By
services whenever
The
In due time
plaintiff
and,
he did
error
support
to disturb the
was not
county.
properly
Cattle
keep
it.
in error
timely
with the business of
the court will
1915,
fact that defendant
the case was
had, resulting
but
and notice
his second
App. 511,
plaintiff
appeal
in error
188-190; Railway
hire with
prejudice
the defendant
the 9th
on the defenses
Aldridge,
Ragley
On the 30th
gave
dispense
not file
him
finding, if
rendered a
plaintiff
Hasie,
employed by
Co.,
action
that
if believed
plaintiff
69 S.
filed its
error,
perfected. However,
Anderson v.
month,
before this court.
In the
in
There
the defendant did not
urges
overruled on December
finding
in its
notice of
error
in error’s first
error.
error for
the evidence showed that
going
day
Lbr. Co. v.
plaintiff
contract of
any
and filed its writ of er- and the issue
competing company
with defendant
assignment
in
plaintiff
by plaintiff
finding
motion for
paid
county
in
was evidence
in
and we are not in
assignment
contains no
county
impute to
there is
it desired
tried
employ,
plaintiff
Tex. Civ.
given,
general
error could not af-
conclusions of
in
into
day
error
January, 1914,
urged
de novo
the lower court
appeal,
error. Plaintiff
Carter,
Co. v.
the trial
any particular
Tuggle
in error
plaintiff!
in a
details,
court a writ-
court
in error
court of Jef- error
amount sued
error
wages
employment
filed a
month,
Ins.
on
evidence to
in
verdict
assignment
in the
November,
the court.
defendant
new
Harris v.
to do
the trial
in
error
is there
Dorman,
in favor
that ac-
findings
but
on Feb- as a
defend
in
in
v. Iron
Co.,
had a
in er ror’s third
in
lower
error,
what
semi
trial,
have Co.
find
peti-
held
said
fact
per- prejudice
jus-
the under
the must have
ex- was
21,
er-
so,
to first
its
with
ure to secure
ing to
posed,
ing
therefore
showed
time in
Bradford,
injustice
law,
tiff
spect
Efron v.
puts upon
tention
ror had a
ment
that
but
error
fers
so
error cannot
court
able
consent
defendant
disturb the
assignment
torneys
the
regular judge,
lower
in his
pending
DUNN v. HOME NAT.
(Court
tional
The case was tried
By
By
It is so
[3]
Judges
it,
far as this record
could.
employ, organized
time it did
parties in
Const,
either
placed upon
court.
defense
assignment
defendant
There
had
does
the services of
to this
in
claims
the fourth
from
quarantine
absence from
its third
court
testimony,
error claims
Bross,
hold
while the evidence is
we
that defendant in error
the motion
thereof
on
discover, and the
this matter: Weber Gasoline Co. v.
the same character at other
not successful
has been done
Clayton,
AND STATUTORY PROVISIONS.
failed
overruled.
appoint proper
34 Tex. Civ.
ordered.
in not
in
@=>16—Special
understand
him to minimize
assignment
pleaded
pleaded
art.
fair,
of selection of a
is overruled.
finding
is evidence in the record to show
in
that
that
be heard
assignment,
error to
having
@=»For
other cases see same
Indexes
(Tex.
181 SOUTHWESTERN REPORTER
*2
regular
Held,
judge being
bar.
“The
member of the
from
before
absent
act,
quarantine
judge
parties
and under
the
and
was without
agree
judgment
hereto
Littler, Esq.,
void.
the cause
before Hon. J. B.
Big
waiving
Springs bar,
of the
Judges,
cases, see
Cent.
[Ed.
other
Note.—For
except
formalities,
swearing
Dig.
Dig.
the said
46, 63-59;
<8=»1C.]
§§
Dec.
judge,
qualification.”
as relates to
Authority —
Judgment
—<§=>9
2.
Judicial
Upon
Act
Parties.
judgment
oe
was rendered in
independently
cannot,
of constitu-
Parties
pellee’s
against
favor
Dunn and Good for
judicial
statutory provisions, confer
tional or
Dunn, being
amount of the note.
a sure-
attempted
authority,
the
where it is
be done
and
nullity.
judgment
appointee
ty,
judgment
is a
against
of the
recovered
over
cases,
Judgment,
[Ed.
other
see
Note.—For
assigned
[1] It is
as fundamental error that
Dig. <§=>9.]
Dec.
judgment
the'
thority
entered is
for want of
void
au
Judges <@=519 Special
—Jueisdio-
3.
—
judge.
posi
Littler
act
Deny.
Bstoppel
tion —
tion is well taken. Section 11 of article 5 of
appoint-
have consented to the
Parties who
special judge,
parties by
the Constitution
ment of a
absence of
regular judge
not
from the
are
district
appoint
proper person
sent
pending
jurisdiction.
thereby estopped
denying
from
in the district
where the
cases,
Judges,
see
other
Cent.
[Ed. Note.—For
judge
A
Dig.
Dig.
64-67;
<S=»19.]
Dec.
§§
parties
by
is
lection
also conferred
—
<@=>185
Appeal
—
4.
Review
and Eerob
Revised
cases
where
Fundamental
Eeeoe.
disqualification
judge’s
exists.
A
want
to act
jurisdiction
is
affects the
of the
and
shows no
may
fundamental
be
therefore a
first raised on
regular judge.
appears
that he was
appeal.
from the court.
In such case the
cases,
Appeal
see
and
[Ed. Note.—For other
practicing attorneys
statute
Dig.
Error,
1166-1176, 1375;
Cent.
Dec.
§§
<@=>185.]
may proceed
Dig.
of the court
to elect
judge,
proceed
who shall
the court
Rehearing.
conduct
business thereof. Article
Judgment
Validity
Pabty
—<@=>9
—
5.
Not appears
R. S.
It thus
there was
Aeeected.
statutory
against
constitutional
suit in
In a
the district court
principal
surety
prin-
and
on a
parties
judge
act
cipal
appearance
partici-
and did not
regular
lieu of the
and
by
pate
spe-
in the ineffective
provision governing
existing
under the
condi
judge
authority,
cial
acted
against
judgment
principal
disregarded.
such
tion
nullity.
[2] Where a mode of
selection
cases,
Judgment,
[Ed. Note.—For other
see
judges
prescribed by
Constitution,
is
Dig. <@=»9.]
Dec.
indicated,
the causes
selection are
Judgment <@=5237 Principal—Surety.
6.
—
thereby
other modes and other causes are
ex
suit,
In such
discontinu-
cannot, independent
cluded. Parties
of con
principal
ance as to the
for some reason men-
statutory provisions,
ju
judgment stitutional
confer
tioned in
against
St. arts.
Rev.
surety
erroneous, as,
unless
authority,
attempted
dicial
and where it is
was rendered
by
ap
a
nullity;
be done
rendered
principal,
improper.
surety
was pointee
parties
is a
will not
estopped,
consent,
by
denying
be
the
Pr.
cases,
Judgment,
other
[Ed. Note.—For
see
<@=o
Dig.
415, 418-421, 429;
Dig.
jurisdiction.
Eng. Ency.
Cent.
§§
11 Am. &
Pl. &
237.]
cited;
Cyc.
also 23
and cases there
applied
601.
This rule
Oourt
Appeal
from District
Martin Coun-
of Criminal
this state
Summer
ty;
Special
Littler,
Judge.
B.
John
See, also,
v.
lin
Whit
National
Action
Home
Bank
Butler,
tington
App.
Willson,
Cas.
v.
Ct.
Good, principal,
Billie
ty.
L.
O.
sure-
Burney,
Castles v.
plaintiff,
Judgment for
and for defend-
Unrep.
Adams,
Posey,
Mitchell
Cas. 117.
ant Dunn over
statutory provisions
constitutional
Our
appeals.
defendant Dunn
manded.
Reversed and re-
reg-
exclude
one
than the
the idea
other
judicial
ular
can undertake to exercise
Caldwell,
Midland,
M.
J.
and A. L.
except
authority,
instances
in those
Green,
Horn,
appellant.
of Van
R. N. mentioned;
when the facts exist author-
Grisham,
Sweetwater,
Daniel,
and W. T.
izing
act in
the selection
some one to
appellee.
Merkel,
place
parties
must
prescribed
proceed
mode
the stat-
in HIGGINS,
Appellee
appellant
J.
regular
being disqualified,
and ute. The
promissory
Billie
executed the
were without
note
appearance
special judge by agreement.
them. Good made no
[3,
case. The
was tried before Hon.
John
herein rendered was
special judge,
Littler,
judice.
nullity,
B.
who acted as such coram
As such it was a
non
estopped
of an
virtue
entered into be-
are not
to raise
and
question.
appellee,
jurisdiction
tween
which reads:
affects
<@=5For
eases see
other
same
and Indexes
HAT.
DUNN HOME
that,
independent
or stat-
and is therefore
fundamental
constitutional
a.
appeal.
utory
provision,
first
Our
confer
be
raised
McLeary, judicial authority upon
individual,
to Schultze
attention
directed
attempted
done,
73 Tex.
W.
158,
Ford
Ry.
appointee
Co.v.
rendered
is a
mere
Our attention
to no
is called
authority
tion,
contrary.
connec-
McFaddin,
S. W. 436. These
do not
we call attention to the fact
*3
expressed.
In
the
McLeary,
W,
views
conflict with
Schultze v.
Tex.
S.
statutory authority
for
distinguished
the
them
lection
existed
the
trial
in that
special judge; here there is
appointment
an
case held
as
authority
select
Supreme
lack of
inherent
was unauthorized. The
governed
article
upon
sent. It
passing
validity
was
the
of his
S., requiring
the
B.
lawyers present.
an
upon
election
appointment,
based
fact that one
suit
was
presented
questions
for re-
There are other
in fact related
alleged
arising
disqualify
errors
to have
him,
view
out of
authority
and that therefore
trial;
but in
view
appointment
committed
been
existed for
judge.
an
that the trial was
unauthorized
of the fact
It
thus
would
seem
infer-
unnecessary,
proceeding,
perhaps
and we would
it
ence,
Supreme
approved
least,
at
Court
passing upon
justified
not be
judge that,
the view of
trial
if
supra.
pointment
same. Summerlin
unauthorized,
was
he would have
judicial authority
Beversed
remanded.
to exercise
merely
If
the case.
the
case at
bar involved
Behearing.
question
qualification
rehearing, in
Appellee,
irregularity
his motion for
or some
of detail
opinion
appointment
this court is
qualification,
herein
sists that the
then we think
Supreme
very
the decisions of
in conflict with
it would be
clear that
would
Appeals
precluded
raising
question by
Court and Courts
Lempert,
participation
55 Tex.
Shultz
cases:
reason of his
objection.
S.
Davis v.
34 W.
Ford v.
trial
But
the
to the
840; Ry.
Bingham,
question
quite
goes
different,
S.
Co.
very
Civ.
foundation of the
judicial power upon
S.
Tex.
29 W.
to confer
by
an individual
McFadden,
consent or
when there is m>
moves