Dupree v. Dupree , 339 S.W.2d 378 ( 1960 )

DAVIS, Justice.

This is an appeal from the Domestic Relations Court of Gregg County, Texas.

On July 16, 1954, Henrietta Dupree filed suit in the District Court of Gregg County, Texas, for a divorce upon the grounds of cruel treatment. The Honorable Oscar B. Jones represented Milton Dupree as an attorney. The case was dismissed upon the grounds of reconciliation by an order entered on July 27, 1954.

This case was filed in the District Court of Gregg County, Texas, for a divorce upon the grounds of cruel treatment on August 28, 1959. Subsequent to the filing of the first suit the Court of Domestic Relations was created in Gregg County, Texas, and’ the Honorable Oscar B. Jones had been appointed as Judge of «aid court. The trial of this case was before the Honorable Oscar B. Jones, who as a matter of law, was disqualified to try the case because of the- fact, that he had previously represented Milton. Dupree in a similar case in the District Court of Gregg County.

The record of the case shows that both parties agreed to waive the disqualifications of Judge Jones. This they could not do. 25 Tex.Juris. 303, Sec. 55, and authorities therein cited.

We find in 25 Tex.Juris. 305, Sec. 57 the-following:

“ * * * And a judgment in a divorce suit, rendered in favor of the plaintiff husband by a judge who had acted as his attorney in a previous suit brought by the wife, is a mere nullity which may be held for naught in a collateral proceedings. * * * ”

See also Newcome v. Light, 58 Tex. 141.

The judgment entered by the Court of Domestic Relations is hereby set aside and' judgment is now rendered reversing the-judgment of the trial court and remanding; the cause for new trial at the cost of appellant. Texas Company et al. v. Tijerina et al., Tex.Civ.App., 301 S.W.2d 478, n.w.h.

Reversed and remanded.