
    LYLE et al. v. COLLIER et al.
    No. 3964.
    Court of Civil Appeals of Texas. Amarillo.
    July 5, 1933.
    W. W. Kirk and Williams & Day, all of Plainview, and Dennis Zimmermann, of Tu-lia, for appellants.
    C. D. Russell and Graham & Graham, all of Plainview, for appellees.
   JACKSON, Justice.

On November 10, 1931, C. A. Lyle, plaintifi filed suit No. 3737 in justice court, precin^ • No. 1, Hale county, Tex., of which court J. I Siler was justice of the peace, against Dav Collier, A. M. McMillan, Albert G. Hinn, W E. Settoon, P. M. Dougherty, and J. D. Steak ley, defendants, to recover the sum of $40.1(

The plaintiff alleged that the defendant constituted the directors of the Plainviev National Bank, and on September 12, 1931 he placed said sum in the bank and receive! a deposit slip therefor. That he had ⅛ knowledge thereof, hut at the time he mad the deposit the bank was insolvent and ceas ed to do business on said day and is still h the hands of a receiver. That the defend ants knew, or could have known by ordinal; prudence, the condition of the bank and ii accepting his deposit became jointly and sev erally obligated to him for the sum deposit ,ed. He relinquished the bank from all claim! on its assets and sought judgment against th< defendants.

In due time the defendants each filed hi¡ sworn plea, supported by the affidavits of tw< credible citizens of the county, setting ou that each of the affiants had reason to be lieve and did believe that none of the defend ants could have a fair and impartial tria before J. P. Siler or in his justice precinct applied for a change of venue, and asked th( justice to transfer the case to the nearesl justice within the county not subject to the same or some other disqualification.

On December 30th, C. A. Lyle filed a controverting affidavit demurring tp the defendants’ application, and stated that he had reason to believe, and did believe, that the defendants could have a fair and impartía trial before said justice and in said precinct

The defendants excepted to the controvert ing affidavit, and contended that, as a matter of law, they were entitled to a change oi venue and a transfer of the case. The exceptions were overruled by the justice, who set the issue of venue and transfer for hearing on January 4, 1932. The defendants each filed additional affidavits with two other credible citizens of the county and insisted that the justice was thereby deprived of further jurisdiction except to transfer the cause to the nearest justice within the county qualified to try the same.

On hearing the plea and controverting answer, the application for change of venue and transfer was denied, and, over the objections of the defendants, the justice set the case for trial on its merits before him in his precinct on January 13, 1932.

On the day said cause was set to be tried on its merits before the justice, the defendants therein, the appellees here, applied to the district court of Hale county for a tem-orary injunction restraining said justice and 3. A. Lyle from proceeding with the trial, nd asked upon a final hearing the temporary ujunction be made permanent and the court ssue a writ of mandamus directing the jus-ice to transfer the cause to the justice of reeinct No. 3 in Hale county, Tex., the near-st justice to said precinct No. 1 within the ounty not subject to the same or some oth-r disqualification.

In addition to the foregoing, the petition-rs for injunction alleged that, although at he hearing they insisted that as a matter f law they were entitled to a change of enue on the affidavits presented, the justice f the peace heard oral testimony and over-uled their pleas, stating as a reason there- or that in his opinion petitioners could have . fair and impartial trial before him and in is precinct. That some of the affiants mak-ag the supporting affidavits testified orally efore the justice that they had good rea-on to believe, and did believe, that the de-endants could not have a fair and impar-ial trial before him or in his precinct. That he testimony heard on the plea of privilege howed that, since the Plainview National Sank closed, great prejudice had existed gainst the defendants; that a large number f the residents of said precinct had depos-ts in said bank, many of which were made n the day before it closed; that the justice dmitted that he had deposited $12.70 in the ank on September 11th and the bank was till indebted to him for that and other mounts. That the justice announced that he muid not permit such facts to influence him nd the large crowd present at the hearing pplauded such announcement. That the estimony disclosed the defendants could not btain a fair and impartial trial in said pre-inet or before such justice. That said jus-ice was threatening to proceed to try and ispose of said case, and, unless restrained, bey feared he would enter judgment against bem; that they had a meritorious defense, ad no right of appeal from the order refus-ig to transfer the ease, and had no adequate emedy at law. That they could have a fair nd impartial trial in precinct No. 3 of Hale ounty and before the justice thereof, who ras the nearest justice to precinct No. 1 not isqualified to try the suit The district court granted the temporary ijunction, and on February 9, 1932, J. P. iler, the justice, and O. A. Lyle answered y general demurrer and special exceptions. On May 27, 1932, on the final trial, after earing the evidence, the temporary injunc-on was modifie-d by the court and made per-íanent, restraining the justice of precinct To. 1 from taking any action except to trans-ar cause No. 3737, and he was ordered by íe decree to transfer said case to the jus-de of precinct No. 3 in Hale county, from rhieh judgment the appellants appeal.

Appellants contend that the affidavits filed in the justice court by appellees were not in compliance with article 2394, because thdre was omitted therefrom the word “good,” and the justice, having adjudged said affidavits to be insufficient, could not be required by injunction to sustain the motion to transfer.

Article 2394, R. C. S., is as follows: “If any party to a suit before any justice shall make an affidavit supported by the affidavit of two other credible persons, citizens of the county, that they have good reason to believe, and do believe that such party cannot have a fair and impartial trial before such justice or in such justice[’sj precinct, the justice shall transfer such suit to the court of the nearest justice within the county not subject to the same or some other disqualification.”

It will be noted that appellants, in their answer to appellees’ suit in the district court, relied on exceptions leveled at the petition, and denied none of the fact allegations contained therein. There is no statement of facts in the record, hence the judgment must be affirmed unless it is invalid as a matter of law.

The record shows that the justice gave as his reason for refusing to transfer the case that in his opinion petitioners could have a fair and impartial trial before him and in his precinct. In the hearing before the justice, the oral testimony disclosed that some affiants making the supporting affidavits testified they had good reason to believe, and did believe, that the defendants, could not have a fair and impartial trial before such justice or in his precinct.

This objection to the affidavits was not raised either in the justice or district court, but is presented for the first time in this court, and in our opinion does not present reversible error. Jones et ux. v. Womack-Henning & Rollins, Inc. (Tex. Civ. App.) 53 S.W.(2d) 635; Jamail v. C. B. Cato & Co. (Tex. Civ. App.) 300 S. W. 114.

Appellants assail as error the action of the district court in perpetuating the injunction and directing the justice to transfer the case, because, under the statute authorizing appeals from justice court to county court, appellees had an adequate remedy at law.

Article 2394, when invoked, presents two causes, the existence of either of which requires the justice to transfer the ease; one if the party cannot have a fair and impartial trial before the justice; the other if he cannot have such trial in said justice’s precinct.

Whether articles 2170 and 2171, R. C. S., vest a justice of the peace with authority to determine from testimony whether a litigant in his court is entitled to a change of venue on the issue that he could not have a fair and impartial trial in said justice’s precinct, it is unnecessary to decide, since the defendants in justice court, appellees here, contend that they could not have a fair and impartial trial before the justice.

There is no exception to the venue statutes permitting the transfer of a case because the litigant believes he cannot have a fair and impartial trial before the judge, except the provision applied to justices of the peace in article 2394. Such provision has never been interpreted by the courts of this state, and in other jurisdictions where similar statutes have been construed the courts are not in accord, but in our opinion the decisions holding that such a statute is mandatory, furnishes a summary remedy, and deprives the court of jurisdiction, except to transfer the case, are based on the better reason and announce the safer rule.

The justice of the peace may have believed that he could act without bias or prejudice towards the defendants in the trial, but they were not required to permit him to make such an experiment State v. Grinstead, 10 Kan. App. 78, 61 P. 976, 977.

In Vogel v. City of Milwaukee, 47 Wis. 435, 2 N. W. 543, the court says: “The venue is to be changed, not upon the fact of the judge’s prejudice, but upon the imputation of it * * * It goes upon a statement of belief, not of fact, save in so far as belief may be a fact; upon assertion that the party has reason to believe and does believe that he cannot receive a fair trial on account of the judge’s prejudice, not upon averment of the prejudice itself.”

In Washoe Copper Co. v. Hickey et al., 46 Mont. 363,128 P. 584, 586, the Supreme Court of Montana says: “To disqualify a judge under subdivision 4 above, the litigant is not required to state any facts upon which his claim of the judge’s bias or prejudice is founded. * * ⅜ It is not the bias or prejudice which works his disqualification, but the mere filing of the affidavit in time, even though the judge against whom it is aimed be entirely free from either charge.”

In construing statutes similar to ours, it has been frequently held that the effect of filing affidavits, where permitted by statute, imputing bias or prejudice to the trial judge, is to deprive him of all jurisdiction except to transfer the case.

In Fraser et al. v. City of Fargo et al., 135 Wis. 401, 116 N. W. 3, the Supreme Court of Wisconsin says: “The effect of the application for a change of venue is to deprive the presiding judge of further power, except to carry out the statutory provisions on the subject.”

To the same effect are the holdings in Stephens v. Stephens, 17 Ariz. 306, 152 P. 164; Huhn v. Quinn, 21 Wyo. 51,128 P. 514; Shattuck v. Myers, 13 Ind. 46, 74 Am. Dec. 236; Cook v. Baxter, 27 Ark. 480; Krutz v. Howard, 70 Ind. 174; Griffin v. Leslie, 20 Md. 15 Brothers v. Williams, 65 Wis. 401, 27 N. W 157; Fatt v. Fatt, 78 Wis. 633, 48 N. W. 52.

The same construction is given to sue] statutes regulating the practice before jus tices of the peace.

In Hellriegel v. Truman, 60 Wis. 253, 19 N. W. 79, 80, the court says: “We are clearly o: the opinion that the justice lost jurisdictio: to try the case after the affidavits of prej udice were presented and the motion for re moval was made. The rule established h such cases for the circuit courts must be ap plied to the justice’s court. The language o the two statutes is alike.”

Under this record, our statute, and thes decisions, the justice of -the peace, when th affidavits were filed, was deprived of all ju risdiction, except to transfer the case to th nearest justice within the county qualifiei to try it. The defendants having imputei prejudice, bias, or interest to him, his dut; was imperative, and he was not empowerei to pass on the issue of his prejudice. Th judgment overruling the application for ; transfer of the case from his court, his oi d'er setting the case for a hearing on its mei its, and any judgment rendered by him o: the merits, would have been void, and it enforcement could have been enjoined.

In Craig, Sheriff, et al. v. Pittman & Harrison Co., 234 S. W. 1112, 1113, the Court of Civil Appeals at Dallas holds: “That th judgment was absolutely void is'not doubl ful to us. The effect of filing the plea o privilege was to make prima facie proof o defendant’s right to have the • case tram ferred. The filing of the plea operated t preclude any other proceedings until afte it had been disposed of in the manner prc vided by the statute. No contest having bee: filed by the adverse party, and the defendan neither having waived nor abandoned th plea, it was the duty of the court to sustai: it. The only valid order which could hav been entered would have been that tram ferring the ease. All further proceeding were beyond the power of the court in the at senee of a contest and notice thereof to dt fendant according to statutory requiremen * * * The judgment of the justice of th peace being void, then, under well-settle authority, its enforcement could be restraii ed by enjoining execution. Heath v. Layne 62 Tex. 686.” This holding was approved b the Commission of Appeals in 250 S. W. 667.

If we are correct in our conclusion tha the defendants in the justice court by thei affidavits imputed bias, prejudice, or inte) est which deprived the justice of all juris diction except to transfer the case, the dis trict court was correct in restraining hii from attempting to exercise further jurisdic tion and directing that he transfer the cast

While the rule is not universal, we are n agreement with the authorities holding hat a writ of injunction or prohibition will ie to prevent a judge so disqualified from rying and disposing of the case, as an-iounced in the following: State of Missouri ex rel. Frank W. McAllister v. Slate, 278 Mo. 70, 214 S. W. 85, 8 A. L. R. 1226 and notes 238; Conkling et al. v. Crosby, 29 Ariz. 60, 39 P. 506; Brown et al. v. Rowe, Circuit Judge, 96 Fla. 289, 118 So. 9; Riner, Tax Collector v. Flanders, 173 Ga. 43, 159 S. E. 693; Leonard v. Willcox, Superior Judge, 101 Vt. 95, 142 A. 762; Ewing v. Haas, Circuit Judge, 132 Va. 215, 111 S. E. 255.

What we have said disposes of the ques-ions presented for review, and the judg-aent is affirmed.

MARTIN, J., not sitting.  