Weil v. Lewis , 2 S.W.2d 566 ( 1928 )

On the 3d day of April, 1917, Felix Weil recovered judgment in county court of Orange county against Mrs. Susan Lewis and certain of her children named in the judgment, before D.C. Bland, county judge of Orange county at the time the judgment was rendered. Judge Bland was a second cousin of Mrs. Susan Lewis, and therefore a third cousin of her children named in the judgment. Execution duly issued upon this judgment, and after execution was issued the judgment was duly abstracted. Afterwards Mrs. Lewis died. After her death this suit was brought in the district court of Orange county by Felix Weil against her children, named in the judgment, to foreclose an asserted judgment lien against property owned by these children and not coming to them as heirs of Mrs. Lewis. The defendants in district court contested the suit to foreclose the lien, pleading that the judgment against them was void because of the relationship they and their mother bore to Judge Bland, who rendered the judgment against them in the county court. The trial court correctly sustained this plea and held the judgment absolutely void.

Section 11, art. 5, of the Constitution, provides:

"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, Revised Statutes 1925, provides:

"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."

It is admitted in this case that Judge Bland was related to Mrs. Lewis within the third degree, being her second cousin, which made him related to the other defendants within the fourth degree. Mrs. Lewis was a necessary party to the suit in the county court. It is the law of Texas that the act of a judge subject to any constitutional disqualification is absolutely void, as between the parties, and can be attacked as such in a collateral proceeding at any time. Chambers v. Hodges, 23 Tex. 104; Newcome v. Light, 58 Tex. 141, 44 Am.Rep. 604; Templeton v. Giddings (Tex.Sup.) 12 S.W. 851; Andrews v. Beck, 23 Tex. 455; Burks v. Bennett,62 Tex. 277; Gains v. Barr, 60 Tex. 676; Jouett v. Gunn,13 Tex. Civ. App. 84, 35 S.W. 194; Nona Mills Co. v. Wingate,51 Tex. Civ. App. 609, 113 S.W. 182; Lee v. British, etc.,51 Tex. Civ. App. 272, 115 S.W. 320; Alsup v. Insurance Co. (Tex.Civ.App.) 283 S.W. 618.

Being absolutely void, the order of the county court was of no effect whatever and left the case "remaining undisposed of, as completely as if the judge had not been present at the court." Chambers v. Hodges, supra; Newcome v. Light, supra. That Mrs. Lewis was dead and her heirs as such were not made parties to this suit to foreclose the judgment lien does not entitle appellant to a foreclosure against the other defendants. The judgment, being void as to Mrs. Lewis, was void as to all the defendants. Since the judge cannot make an order dismissing the suit as to a party whose relationship disqualifies him and then adjudicate upon the remaining parties (Gains v. Barr, supra; Garrett v. Gaines, 6 Tex. 435), he cannot render a valid judgment upon an indivisible action where certain of the parties are related to him within the prohibited degree, though not disqualified as to the others. His judgment is absolutely void as to all the parties.

The judgment of the trial court is in all things affirmed.