
    MILAN et al. v. WILLIAMS, District Judge.
    (No. 1151—5450.)
    Commission of Appeals of Texas, Section B.
    Feb. 19, 1930.
    O. D. Lennox, Jr., of Clarksville, and King, Mahaffey & Wheeler and Everett Bryson, all of Texarkana, for relators.
    Jones & Jones, of Mineóla, for respondent.
   RYAN, J.

This is an original application for mandamus based upon the following situation: 1

A. D. Lennox and C. D. Scaff, with some eighteen others, minority stockholders in the Gibbons Manufacturing Company, on February 20,1929, filed their petition in the district court of Red River county, of which Hon. R. J. Williams is the regularly elected, qualified, and acting judge, against G. C. Gibbons, Mrs. Melissa Annie Gibbons, Mrs. Helen Margaret Ward, and the Gibbons Manufacturing Company, alleging the mismanagement and neglect of the business by G. C. Gibbons, manager thereof, which resulted in great losses during the years 1925, 1926, 1927, and 1928. The prayer was for an accounting by said G. C. Gibbons, repayment of certain moneys spent and charged by him, and the appointment of á receiver for the Gibbons Manufacturing Company, and such “relief, general and special, from time to time as in law or equity the plaintiffs may be entitled to.”

The court was then in session at a regular term thereof, with Judge Williams presiding.

A. D. Lennox, one of the plaintiffs in said suit, is the brother-in-law of Judge Williams, they having married sisters; and C. D. Scaff, the other plaintiff above named, is the brother of Mrs. Williams and of Mrs. Scaff, and the brother-in-law of Judge Williams.

Tlie judge was therefore disqualified from acting in any litigation before bis court involving Lennox and Scaff. Const. art. 5, § 11; article 15, Rev. St. 1925; Schultze v. McLeary, 73 Tex. 92, 11 S. W. 924; Gains v. Barr, 60 Tex. 676; Jordon v. Moore, 65 Tex. 363.

It appears from tbe averments of relators’ petition for mandamus that on tbe following day, February 21, 1929, while tbe court was still in session, Judge Williams granted plaintiffs leave to file, and there was filed, their first amended original petition, identically tbe same as tbe original petition, except that tbe names of A. D. Lennox and C. D. Scaff were omitted as parties plaintiff.

No citation was issued on tbe original petition by tbe district clerk, but citation did issue by him on tbe amended petition, and was served on the defendants, returnable to tbe next regular term to convene on May 13, 1929.

On tbe same day tbe amended petition was filed, tbe court (Judge Williams presiding), without notice to tbe defendants, made an order appointing a receiver for all tbe property and assets of the Gibbons Manufacturing Company, with full authority to carry on its business, take possession of all its assets, and generally to manage the property, subject to tbe court’s orders.

Tbe defendants in that proceeding promptly appealed from tbe order appointing the receiver; tbe Court of Civil Appeals at Tex-arkana vacated such order, and reversed and remanded tbe cause for further proceedings, bolding that tbe appointment was not authorized without first giving notice to tbe defendants.

Soon after tbe mandate was returned to tbe district court, tbe defendants, by motion, suggested tbe disqualification of Judge Williams because of bis relationship to Lennox and Scaff; this motion was granted, tbe judge recused himself by order entered on May 22, 1929, and certified bis disqualification to tbe Governor, who directed Hon. R. T. Wilkinson, judge of tbe Seventy-Sixth judicial district of Texas, to exchange benches with Judge Williams and try said cause.

Relator’s contentions are:

■ (1) Tbe suit being returnable to tbe May term of court, although petition was filed while tbe regular February, term was in session, tbe court was not in session then for tbe trial of this case — for that purpose was in vacation — and therefore it was not necessary to obtain leave of court to file tbe amended petition.
(2)Tbe defendants below waived their right to object to tbe filing of tbe amended petition by having appeared and answered before they filed their motion to disqualify tbe judge.
(3) Tbe granting’ of leave to file tbe amended petition was purely ministerial,, 'and such an act as a disqualified judge can perform.
(4) That the filing of their amended petition in which Lennox and Scaff were omitted as parties plaintiff operated a dismissal as to them, and tbe judge’s disqualification was thereby removed.

Opinion.

That tbe amended petition as well as the original petition, although returnable to tbe following term, were both filed “when court was in session,” does not admit of seri-' ous argument. It was even só agreed in writing by all tbe parties upon trial of tbe motion to disqualify tbe judge. Therefore leave of court to file tbe amended petition was required under the provisions of tbe second’ sub- . division of article 2001, Rev. Stat. 1925.

While the right to file an amended pleading, after an announcement of ready or during trial of a case, is within tbe trial court’s discretion, .which will not be revised, unless abused (Lipscomb v. Perry, 100 Tex. 122, 96 S. W. 1069; Johnson v. Oil Corporation, 111 Tex. 578, 243 S. W. 455), tbe right to amend before such announcement of ready, at a proper time, and when it does not operate to tbe injury of tbe opposing party, seems to be mandatory (Hopkins v. Seay (Tex. Civ. App.) 27 S. W. 899; Boren v. Billington,. 82 Tex. 137, 18 S. W. 101). In such a case, while tbe court may not refuse tbe right to file, be may attach reasonable conditions thereto, under the provisions of tbe statute, such as tbe payment of costs (Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734; Armstrong v. O’Brien, 83 Tex. 649, 19 S. W. 268), and must pass upon tbe sufficiency of tbe pleading, in whole or in part, if excepted to (Boren v. Billington, supra), which necessarily involves the exercise of' discretion.

Tbe effect of tbe amended petition so filed while tbe court was in session was to dismiss as to Lennox and Scaff, but this dismissal required an order to be entered by tbe judge, some disposition of tbe costs accrued against them to be made, and tbe rights of tbe remaining plaintiffs, as well as the other parties to tbe suit, to be considered. 18 C. J. p. 149; Id., p. 1167.

We think in the instant case tbe order permitting tbe filing of an amended petition and consequent dismissal as to tbe judge’s relatives involved ■ tbe exercise of judicial' discretion, and is ruled by Reeves v. State ex rel. Mason, 114 Tex. 296, 267 S. W. 666, where’ it is held that disqualification extends to bis ordering dismissal of original parties related to him within tbe prohibited degrees. It is there also held that defendant did not waive objection to tbe judge’s disqualification by appearing and answering without first asserting such objection, where it was later made.

Our conclusion is that Judge Williams is disqualifiéd, and we therefore recommend that the petition for mandamus be denied.

OURETON, O. J. The opinion of the Commission of Appeals is adopted, and mandamus is refused.  