88 S.W. 389 | Tex. App. | 1905
The affidavit provided for in the foregoing article was subscribed and sworn to by Kalklosh before the county judge of Parker County after the adjournment of the District Court trying the case. The county judge at the time was of counsel for Kalklosh in this litigation, and for this reason we dismissed his appeal on a former day, and the matter is again before us on motion for rehearing, the insistence being that the fact that the county judge was of counsel for Kalklosh did not disqualify him in the particular referred to. But we see no reason to change our former holding. The article under which Kalklosh attempted to appeal, and which dispenses with the necessity of an appeal bond in certain contingencies, clearly requires that proof of the appellant's or plaintiff in error's inability to pay the costs of appeal, or give security therefor, shall be made either before the county judge of the county where such party resides, or before the court trying the case. It is true that the affidavit of the party, in the absence of a contest, may be taken as sufficient proof by the officer trying the issue. It may be true that such affidavit is necessarily conclusive. Notwithstanding this, the act of the court in determining such matter is a judicial, and not a ministerial, act, and, being such, the proceeding in the present case was violative, generally, of the principle that a man should not act as judge in his own case, and, specially, of article 1129, Sayles' Civil Statutes, providing that: "No judge of the County Court shall sit in any case wherein he may be interested, or where he shall have been of counsel, or where either of the parties may be connected with him by affinity or consanguinity within the third degree." That there was in fact no actual contest instituted can not, we think, affect the conclusion that the act of the county judge was a judicial rather than a ministerial one. It has been held that a disqualified judge can not grant a certiorari to remove the cause from a justice to the County Court (Baldwin v. McMillan, 1 White W., C. C., par. 515); or make an order dismissing a cause for want of prosecution (Garrett v. Gaines,
This question, arising as it does since the final determination of the cause in the District Court, and being one which could not have been put in issue in that court, is properly raised here by affidavits showing *235 the facts affecting our jurisdiction. (Nalle v. City of Austin, 22 S.W. Rep., 960.)
For these reasons our former ruling in dismissing the appeal is adhered to, and the motion for rehearing overruled.
Appeal dismissed.