Fry v. Tucker , 146 Tex. 18 ( 1947 )

Mr. Justice Sharp

delivered the opinion of the Court.

This appeal involves three separate suits, which were by the trial court, over the objection of certain petitioners, ordered jointly tried. The three suits involved certain probate orders in the Probate Court of Cherokee County in a cause numbered 17, and styled Estate of Francis Fry, Deceased, which on appeal to the District Court of Cherokee County were set aside and the administration on the estate ordered closed. The cases were brought from the probate court to the district court by three proceedings: (1 Writ of certiorari filed by Mrs. Fannie Tucker et al to the probate court’s order appointing J. R. Hill administrator de bonis non, No. 15,748; (2) appeal by Stanolind Oil and Gas Company et al from the probate court’s order refusing upon motion to set aside the appointment of J. R. Hill as administrator and to order the estate closed, No. 15,748-A; and (3) appeal by persons who contested the continuance of administration in the first two proceedings from the probate order appointing Fred Fry temporary administrator upon Mr. Hill’s death, and refusing to close the administration, No. 15,748-B.

Based upon the findings of the jury, the trial court entered judgment that administration on the estate was closed. An appeal was made, and the Court of Civil Appeals affirmed the judgment of the trial court in Cause No. 15,748-B, but reversed and remanded Causes Nos. 15,748 and 15,748-A, because the trial court judge’s wife was a cousin of the wife of C. R. Waites, one of the parties involved in the suit. 197 S. W. (2d) 375.

The controlling question presented here is whether the Court of Civil Appeals was correct in holding that the trial judge was disqualified to sit in the trial of Causes No. 15,748 and No. 15,748-A; and, if so, whether this disqualification extends to Cause No. 15748-B, jointly tried with Causes No. 15,748 and No. 15,748-A.

Many litigants are involved in this suit, and the basis of the controversy is the dispute between two groups over title to land in Harris County. One group, who will be referred to as the Tucker group, claim title under conveyance by persons asserted to be the sole heirs of Francis Fry and his son,' Sam Houston Fry. The other group, referred to here as the Fry group, claim to be the paternal heirs of Francis Fry and Sam Houston Fry.

Francis Fry, a citizen of Cherokee County, died intestate in 1856, and his son died a few years thereafter. A month after the death of Francis, his brother-in-law was appointed and qualified as administrator of the estate; and he subsequently died in 1895. In March, 1942, J. R. Hill made application and was appointed by the Probate Court of Cherokee County administrator de bonis non of the estate, and he intervened in various trespass to try title actions then pending in Harris County between members of the above-mentioned two groups. The order of the probate court appointing Hill administrator de bonis non of the estate of Francis Fry, deceased, gave rise to the proceedings which are nowbefore us.

Certain members of the Tucker group filed a motion in the probate court to set aside the appointment of Hill and to declare the administration on the estate closed. This motion was resisted by all members of the Fry group, except Fred Fry as temporary administrator, and he was not then serving in that capacity. Among the several hundred who joined in the contest of this motion was C. R. Waites, whose wife undisputedly was related by affinity within the third degree to the trial judge of the district court. The motion was denied by the probate court, and an appeal was taken to the district court.

Before the appeal papers reached the district court, other members of the Tucker group petitioned the district court for a writ of certiorari to review the action of the probate court in appointing Hill administrator. The sole respondent named in this petition was Hill, as administrator de bonis non. This is the second suit herein involved.

The third suit was occasioned by the death of J. R. Hill in November, 1-944. An application was filed by Fred Fry in the probate court in which he sought to be appointed administrator de bonis non of the estate of Francis Fry, or, in the alternative, temporary administrator pending the disposition of the contest over the appointment of J. R. Hill. The latter request was granted, and - an appeal perfected from this order appointing Fred Fry temporary administrator.

With these three cases in the district court, a motion to consolidate them was overruled by the trial judge, but they were ordered to be jointly tried; and thereafter the court made an order numbering them as follows: the certiorari case, No. 15,748; the motion proceeding, No. 15,748-A; and the application for appointment of temporary administrator, No. 15,748-B, On motion for new trial, the relationship of the trial judge to Mrs. Waites was raised for the first time. The motion for new trial was overruled, but on appeal to the Court of Civil Appeals the trial judge was held disqualified in Case No. 15,748 (the certiorari case) and in Case No. 15,748-A (the motion case), the same being reversed and remanded. Case No. 15,748-B, however, was affirmed.

Some of the orders of the trial judge evidence his attempt to keep the proceedings of the three cases separate. However, a single judgment was rendered in the three cases, and it clearly appears, when the entire record is considered, that the intention to keep the proceedings in the three cases separate was departed from in the judgment rendered.

The judgment which was entered, after stating the names and numbers of each of the three suits, divided the parties into seven groups, and stated in which cause the said groups by their attorneys appeared. The First and Third groups were members of the Tucker group, and the other groups were conmprised of various members of the Fry group; the Second group was Fred Fry as temporary administrator; the Fourth and Fifth groups were the numerous members of the Fry group; the Sixth group was a surety on a probate bond; and the Seventh group were the unknown heirs of various persons.

The judgment recites the personal appearance of C. R. Waites and the other petitioners in Causes No. 15,748-B and No. 15,748. C. R. Waites is expressly named as a party of the Fourth group, and the judgment, after setting out the names of all the parties in that group, recites that the parties in the Fourth group “are appellees in cause numbered 15,748-A and who appeared also in causes numbered 15,748 and 15,748-B.” The judgment recites that those in the Second, Fourth, Fifth, Sixth, and Seventh groups are designated as applicants, and those in the First and Third groups as contestants. The judgment, after reciting that the law and facts are with the contestants, concludes as follows:

“That the judgment is entered as the judgment of the Court in each of the above captioned and numbered Causes, and a copy thereof shall be certified to the Probate Court of Cherokee County, for its observance.

“The costs of each of the above proceedings are taxed against the persons in Groups Second, Fourth, Fifth and Sixth, for which let execution issue.”

The effect of the recitals in the judgment rendered in the three cases is obvious. C. R. Waites is admittedly in the Fourth group. All of the other petitioners are in one of the groups mentioned in the judgment, and a personal judgment is rendered against each of them for the costs in each of the three cases. The judgment decreed that all of the persons mentioned in the Second, Fourth, Fifth, and Sixth groups were taxed with all of the costs in Causes Nos. 15,748, 15,748-A, and 15,748-B. This means that a personal judgment was taken against C. R. Waites in those causes. The judgment decreed that C. R. Waites was not an heir of Francis Fry, nor of his son Sam Houston Fry, and it can be urged that there was an adjudication of heirship against C. R. Waites and the other petitioners, and in favor of the respondents, in each of the three causes. It was also ordered that the administration of the estate of Francis Fry, deceased, be closed.

The Court of Civil Appeals held that while the trial judge was disqualified to sit in the trial of Causes Nos. 15,748 and 15,748-A, he was not disqualified to try Cause No. 15,748-B, because Waites was not a party to that suit. We do not agree with this holding. We should have to ignore the recitals contained in the judgment to affirm the holding of the Court of Civil Appeals. The judgment, after naming those in the Fourth group, which included C. R. Waites, recites “who are appellees in Cause No. 15,748-A, and who appeared also in Causes No. 15,748 and No. 15,748-B.” The decree with respect to costs read: “The costs of each of the above proceedings are taxed against the persons in Groups Second, Fourth, Fifth and Sixth, for which let execution issue.”

It is admitted that the wife of the trial judge and the wife of C. R. Waites are first cousins. This being true, the trial judge was powerless to enter any order in Causes No. 15,748-A, either for or against C. R. Waites, which would affect the rights of his wife, and he was powerless to enter any similar order in either Cause No. 15,748 or Cause No. 15,748-B.

The public policy of this State relating to the disqualification of a judge to sit in the trial of a case is plainly expressed in both the Constitution and the Statutes. Section 11 of Article V of the Constitution provides that: “No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. * * *”

Article 15 of the Revised Civil Statutes of 1925 reads: “No judge or justice of the peace 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 the third degree, or where he shall have been counsel in the case.”

The rules announced in the Constitution and Statutes upon this subject are expressed in unconditional language, and are regarded as mandatory and to be rigidly enforced. It has long been the settled rule in this State that any order or judgment entered by a trial judge in any case in which he is disqualified is absolutely void. Postal Mut. Indemnity Co. v. Ellis, 140 Tex. 570, 169 S. W. (2d) 482; Templeton v. Giddings (Tex. Sup. Ct.), 12 S. W. 851; Burks v. Bennett, 62 Tex. 277; Newcome v. Light, 58 Tex. 141, 44 Am. Rep. 604; Slaven v. Wheeler, 58 Tex. 23; Grogan v. Robinson (Civ. App.), 8 S. W. (2d) 571 (error refused) ; 25 Tex. Jur., p. 299, sec. 53, and cases cited in the footnote. Furthermore, the disqualification of a judge can not be waived in order to give validity to his actions. Postal Mut. Indemnity Co. v. Ellis, 140 Texas 570, 169 S. W. (2d) 482; City of Dallas v. Peacock, 89 Texas 58, 33 S. W. 220; Newcome v. Light, 58 Texas 141, 44 Am. Rep. 604; Seabrook v. First Nat. Bank (Civ. App.), 171 S. W. 247; 25 Tex. Jur., p. 303, sec. 55. And the question of his disqualification may be raised subsequent to his actions. Milan v. Williams, 119 Texas 60, 24 S. W. (2d) 391; Grogan v. Robinson (Civ. App.) 8. S. W. (2d) 571 (error refused) ; 25 Tex. Jur., p. 304, sec. 55.

The rule disqualifying a judge from sitting in the trial of a case has been applied in many instances. His disqualification by rule prevents a judge from deciding any question affecting any person directly interested in the subject matter and result of the suit, regardless of the appearance or nonappearance of the person’s name in the record. The rule has been applied in a case where the community rights of a wife of one of the parties to the suit would be affected by the judgment, although her name was not mentioned in the pleadings: Schutze v. McLeary, 73 Texas 92, 11 S. W. 924; Jordan v. Moore, 65 Texas 363; Seabrook v. First Nat. Bank (Civ. App.), 171 S. W. 247; Gulf, C. & S. F. R. Co. v. Looney, 42 Civ. App. 234, 95 S. W. 691; 25 Tex. Jur., p. 284, sec 41. Under this rule any order taxing costs against C. R. Waites would affect the community rights of his wife.

Respondents contend that the trial judge who tried these cases did not know that he was disqualified; that the community property owned by C. R. Waites and wife at that time was very limited; that it took weeks to try the three cases; and that the possibility of collecting' the costs taxed by the court against C. R. Waites and his wife was doubtful. These facts would in no way abrogate the rule. The test is, was the judge disqualified at the time the cases were tried? If so, any judgment rendered by him was absolutely void, and not binding on the parties involved. Litigants are entitled to have their cases tried by a judge qualified under the law, so that not even the slightest suspicion might attach to his actions.

The Court of Civil Appeals correctly held that the trial judge was disqualified to try Causes Nos. 15,748 and 15,748-A, but erroneously held that he was not disqualified to try Cause No. 15,748-B. The judgment of the Court of Civil Appeals holding that the trial judge was disqualified in Causes Nos. 15,748 and 15,748-A is affirmed, but its holding that the trial judge was not disqualified in Cause No. 15,748-B is reversed, and the causes are remanded to the trial court for further proceedings.

Opinion delivered April 23, 1947.

Rehearing overruled June 11, 1947.