
    SAENZ v. SANDERS et al.
    No. A-3365.
    Supreme Court of Texas.
    Jan. 23, 1952.
    See also Tex.Civ.App., 241 S.W.2d 316.
    
      G. Woodson Morris, Ronald Smallwood, Bob J. Spann, Albert U. Trevino and Sam L. Harrison, all of San Antonio, for relator.
    Birkhead, Beckmann, Stanard, Vance & Wood, San Antonio*, for respondents.
   PER CURIAM.

At a former term we granted the motion of relator for leave to file petition for mandamus against the Honorable P. C. Sanders, District Judge, to compel him to vacate an order and to proceed to trial and judgment in a case in which relator is plaintiff and respondents M. B. Killian and R. W. Briggs are defendants. Prior to the date of submission of the application for the writ of mandamus Judge Sanders died, and that fact was made known to the court through a motion filed by respondents Killian and Briggs to dismiss the proceeding. Relator’s attorney appeared before the court to resist the motion and upon the hearing, in the exercise of its discretion, the court did not pass on the motion to dismiss, but notified relator’s attorney that if he would request Judge Walter E. Lough-ridge, the successor to Judge Sanders, to proceed to trial and judgment, and if Judge Loughridge refused to do so, he could then amend his application, and that if his amendment disclosed the fact that after being requested to do so Judge Loughridge had refused to set the case for trial, the mandamus proceeding would be considered by the court on its merits. Relator did not request Judge Loughridge to proceed but has filed an amended petition for mandamus seeking to continue this proceeding against Judge Loughridge in his official capacity.

It now appears that the case which petitioner is seeking to bring to trial is not pending in Judge Loughridge’s court, the 37th District Court, but is pending in Judge Quinn’s court, the 57th District Court. When Judge Sanders entered the order complained of retiring the case from the active docket he was acting as Presiding Judge of the District Courts of Bexar County, and in that capacity passed upon the motion in connection with the case which was pending in Judge Quinn’s court. There is no showing that the case is not still pending in Judge Quinn’s court, neither is there any allegation that Judge Lough-ridge is now the Presiding Judge of the District Courts of Bexar County. The statement is made in respondent’s brief, and not denied by relator, that Judge Quinn now fills that position. Manifestly, Judge Loughridge could not be compelled to try a case which is not pending in his court at all. This conclusion makes it unnecessary for us to consider any other ground for dismissing the proceeding.

The motion to' dismiss is granted and' the proceeding is dismissed.  