City of Austin v. Cahill , 99 Tex. 172 ( 1905 )

Appellants, on motion for rehearing, raise the question of the disqualification of Chief Justice Ewing to sit in this case because he was counsel in the case of Nalle v. City of Austin,85 Tex. 520. The parties to that suit not being the same, and the matters of dispute being different, we hold that Judge Ewing is not disqualified from sitting in this case. King v. Sapp,66 Tex. 519; Cullen v. Drane, 82 Tex. 484 [82 Tex. 484]; Blackwell v. Farmers Merchants Natl. Bank,76 S.W. 454; Taylor v. Williams, 26 Tex. 583; Glasscock v. Hughes, 55 Tex. 461; Slaven v. Wheeler, 58 Tex. 23, 26; Houston Texas C. Ry. Co. v. Ryan, 44 Tex. 426, 429; Axtell's Ann. Cons. of Texas, sec. 11, pp. 148, 152, 153; 17 Am. Eng. Ency. of Law, 2d ed., pp. 739, 740.

The attorneys for appellants seem to misapprehend the court's attitude as to the minor questions considered in the opinion. The only questions decided by this court were the two certified by the Court of Civil Appeals, both of which were answered in the negative. The other questions discussed in the opinion of the Chief Justice were merely preliminary and collateral, and were considered solely as bearing on or illustrative of the question of necessary parties. Rosetti v. Lozano, 96 Tex. 59.

Justice Minor desires it stated that, upon further consideration, in his opinion, this court should abstain from any expression of its views upon the questions (incidentally passed upon in the original opinion) as to the appellee's right of action to compel levies of taxes for the payment of his demands; but that in all other respects he concurs in the disposition made of this motion.

The motion is hereby overruled.

Chief Justice Ewing took no part in the decision of the question raised as to his disqualification.