Smith Bros. v. Hardin

68 Tex. 120 | Tex. | 1887

Willie, Chief Justice.

There is nothing in the Constitution forbidding a suit, in which the county judge may be disqualified, to be brought in the county court. It gives the district court original jurisdiction of such causes, but does not take jurisdiction from the county court; for it provides for their transfer in case they should have been instituted in that court. This is the proper direction for such suits to take, if brought in the county court when its judge is disqualified. When this is done, the original jurisdiction of the district court attaches immediately, and the cause proceeds as if originally instituted there. Even if this suit had been improperly begun in the county court, it reached its proper forum when transferred to the district court; and there was no necessity to dismiss it from the latter for the sole purpose of beginning it anew therein, and placing it in the same condition it was in at the date of dismissal. The case is different from that when a suit reaches a court by appeal from another tribunal. Then the jurisdiction depends upon the power of the lower court to hear and determine the cause. But the district court was the only court that could hear and determine this suit. The jurisdiction exercised was original and not appellate. The county court could receive but not retain the cause. The only order it could make was to transfer it, and this was done, and the original jurisdiction of the district court brought into existence by one of the means provided by the Constitution. We think the cause might have been tried upon the original petition, and there was no necessity for the amendment. But if the court had no right to proceed with the cause upon the transfer from the county court, it certainly could do so upon the amended petition. This set up everything necessary to bring the cause within the jurisdiction of the district court, and from the date of its filing that court had undoubted jurisdiction, under that provision of the Constitution by which this is directly conferred when the county judge is disqualified. It mattered not that the petition claimed to have been filed by leave of the court. Such a recital as this, or any other, was unnecessary and could not vitiate. The petition showed on its face that it was a proper proceeding in a proper court. Legal process issued upon it which was properly served, and everything necesssary in the way of pleading and parties was before the court, and it rightly proceeded to determine the cause. The appellant Brinkley says that, by reason of the manner in which jurisdiction was claimed, he was deprived of his right to plead as indorser; that the suit was not brought to the first term of the court after the cause of action accrued. But it seems that the amended petition was filed to the proper term; and, if not, the note was duly protested, and this did away with the necessity of a suit to the first term to fix the liability of the indorser. There is no error in the judgment, and it is affirmed, but without damages for delay.

Opinion delivered March 8, 1887.

Affirmed.