
    TEXAS FARM BUREAU COTTON ASS’N v. WILLIAMS, District Judge.
    (No. 1009-4891.)
    Commission of Appeals of Texas, Section A.
    Dec. 7, 1927.
    1. Judges <®=»45 — Judge related within prohibited degrees to stockholder of capital stock corporation held not disqualified from trying case wherein corporation was party (Const, art. 5, § II; Rev. St. 1925, art. 15).
    Under Const, art. 5, § 11, and Rev. St. 1925_, art. 15, mere fact that trial judge is related Within prohibited degrees to stockholder of capital stock corporation does not disqualify him to try case where corporation is a party.
    2. Judges &wkey;>45 — Same rules governing qualifications of judge should be applied when marketing association is party as are applied under general corporation laws (Rev. St. 1925, art, 5763).
    Under Rev. St. 1925, art. 5763, providing that general corporation laws of state, and all powers and rights thereunder, shall apply to associations organized thereunder, same rules concerning qualifications of judge related to stockholder of association to act where association is a party should be applied to marketing association as are applied under general- corporation laws of state, except when in conflict with statutes.
    3. Judges <&wkey;45 — Indirect interest of relative of trial judge in result of litigation does not disqualify judge to try case (Const, art. 5, § 11; Rev. St. 1925, art. 15).-
    Under Const, art. 5, § 11, and Rev. St. 1925, art. 15, mere indirect interest of relative of trial judge in result of litigation does not disqualify judge to try case.
    4. Judges <&wkey;45 — Certificate member of marketing association has no direct interest in suit against association by other members and is not party to suit (Rev. St. 1925, arts. 5737-5764).
    Under charter of mutual farm bureau cotton association, providing that association shall be deemed to be acting in its own name for all growers in any action arising out of contract, construed in light of Rev. St. 1925, arts. 5737-5764, certificate' member of association who has entered into cotton contract has no direct interest in suit brought against corporation by other members thereof, and is not party to suit.
    ■5. Judges <&wkey;45 — Judge related as brother-in-law to certificate members of marketing association not party to suit against association held not disqualified from trying suit (Const, art. 5, § II; Rev. St. 1925, art. 15).
    Under Const, art. 5, § 11, Rev. St. 1925, •art. 15, judge who is related as brother-in-law to certificate members of farm bureau cotton association, not parties to suit brought against association by other members thereof, is not disqualified by reason of relationship to try ease.
    Petition for mandamus by the Texas Farm Bureau Cotton Association against Hon. R. J. Williams, Judge of the 102d Judicial District.
    Mandamus awarded.
    Aaron Sápido, of New York City, C. K. Bul-lard, of Dallas, Robbins & Bailey, of Clarks-ville, and Long & Wortham, of Paris, for relator.
    King, Mahaffey & Wheeler, of Texarkana, for respondent.
   CRITZ, J.

This is an application for writ •of mandamus by Texas Farm Bureau Cotton .Association, a corporation duly organized and ineorpoiated under what is now chapter 8 of title 93 of the Revised Civil Statutes'of Texas 1925, against Hon. R. J. Williams, judge of the 102d judicial district of Texas, to require him to try a certain cause now pending in the district court of Red River county, Tex., entitled H. H. Lennox et al. v. Texas Farm Bureau Cotton Association, No. 13038, and to restrain the trial of said cause before any other court or judge.

Plaintiffs’ action, as originally brought, was to recover damages for alleged breach of ■contract with said association, and for the annulment and cancellation of the marketing agreement with said association, signed by them, on June 30, 1921. By amendment on June 14, 1926, the plaintiffs in said cause No. 13038 sought to recover alone for an alleged breach of contract of said association and made no reference to the written contract between them and the association. The association, by cross-bill, sought to recover damages of plaintiffs by reason of an alleged breach of the marketing agreement signed by them, setting forth such agreement as an exhibit to the bill, and asking for specific performance, and for an injunction restraining plaintiffs from disposing of their cotton contrary to their contract.

The plaintiffs in the district court, H. H. Lennox and O. D. Lennox, presented to Hon. R. J. Williams, district judge, their application and motion, -supported by the affidavits of G. W. Daniel and J. G. Scaff, asking that the judge hold himself disqualified from trying said cause by reason of his relationship as the brother-in-law of the named affiants, who fere alleged to be members of defendant association. Upon hearing of this motion, the district judge held himself disqualified by reason of his relationship to the named persons, and'thereupon made the following order ;

“In the District Court of Red River County, Texas, Spring Term, A. D. 1927.
“H. H. Lennox et al., Plaintiffs, v. Texas Farm Bureau Cotton Association, 'Defendant. No. 13038.
“Oh this the 25th day of June, 1927, came regularly on to be heard a suggestion filed in this cause by the plaintiffs, suggesting to the court that he is disqualified to try this cause, by reason of his relationship in the third degree by affinity to J. C. Scaff .and G. W. Daniels, both of whom are members of the defendant, and have signed contracts similar in terms to that sued on by the defendant in its cross-bill herein. And the court, after hearing and considering said suggestion or motion, finds that the allegations therein are true, and by reason of facts stated therein and by reason of facts brought to his attention in the nature of the terms in the contract sued on finds and holds that he is disqualified to try or make any orders in this cause, and so holds and declares himself to be disqualified.”

Pursuant to and following the above order, Hon. R. J. Williams, district judge as aforesaid, refused to proceed further with said cause, and certified his disqualification to the Governor of Texas by the following finding and certificate:

“No. 13038.
“In the District Court of Red River County, Texas.
“H. H. Lennox et al., Plaintiffs, v. Texas Farm Bureau Cotton Association, Defendant.
“To His Excellency, the Honorable Barry Miller, Acting Governor — Sir:
“I, R. J. Williams, judge of the 102d judicial district of Texas, do hereby find and certify that I am related by affinity within the third degree, to George W. Daniel (he having .married my sister) and J. G. Scaff (I having married his sister, Fannie Scaff) and that both said relatives are members of the defendant association and that the said George W. Daniel is and was a grower of cotton in Texas prior to July 1, 1921, and that each of said named parties signed a contract generally similar to the one attached to the defendant’s answer and cross-bill upon which the defendant seeks to recover about $47,000.00 for an alleged breach thereof, and that the one signed by the said George W. Daniel was prior to the incorporation of the defendant association, which was incorporated July 23, 1921, and that paragraph fifteen of the marketing contract embodied in the association agreement reads as follows:
“ ‘(15) This agreement is one of a series generally similar in terms, comprising with all such agreements, signed by individual growers, or otherwise, one single contract between the association and the said growers, mutually and individually obligated under all of the terms thereof. The association shall be deemed'to be acting in its own name, for all such growers, in any action or legal proceedings on or arising out of this contract.’
“I further find that the defendant association is a mutual association wi.thout capital stock and that its assets belong to its members.
“I therefore conclude -and hold that George W. Daniel and J. O. Scaff are ‘parties’ in interest and ‘parties’ by representation to the above and foregoing suit within the meaning of the Constitution and Laws of Texas, and that X am disqualified to hear and try the aforesaid suit and cause of action, and I now and here so certify and request your excellency to designate some district judge in an adjoining district to exchange and try the case as provided under article 1885 of the Rev. Statute 1925.
“[Signed] R. J. Williams,
“Judge 102d Judicial District.”

The Governor of Texas, acting upon said certificate, designated Hon. G. P. Blackburn, judge of the Sixth judicial district of Texas, to act in place of Judge Williams.

The plaintiffs H. H. and C. D. Lennox endeavored to proceed with the trial of said cause before Judge Blackburn on July ,11, 1927, and the present application for mandamus and for restraining order was filed by said association to require Judge Williams to proceed with the trial of said cause, on the ground that relationship to a certificate member of said association, who is not a party to said suit, does not disqualify him from hearing said cause, and the restrain the trial of said cause No. 13038 by any other district judge.

The charter of said corporation contains, among • others, the following provisions:

“We, the undersigned, all of whom are residents and citizens of the state of Texas, engaged in the production of agricultural products, do hereby voluntarily associate ourselves together for the purpose of forming a nonprofit co-operative marketing association, without capital stock, under the Co-operative Marketing Act of the state of Texas.”
“The Texas Earm Bureau Cotton Association shall make no profits from any of its activities, but all of its operations shall be for the mutual benefit of its mepibers only and shall be cooperative in character.”
“The Texas Earm Bureau Cotton Association shall not have any capital stock, but shall admit members into the association upon payment of an entrance fee of ten ($10.00) dollars and other uniform conditions. The association shall waive payment of such entrance fees up to 1926 to all members of the Texas Farm Bureau Federation.
“The voting power of the members of this association shall be equal, and each member shall have one vote only.”

The contract between said association and its members contains, among other things, the following provisions:

“The association agrees to buy and the grower agrees to sell and deliver to said association all of the cotton produced or acquired by or for him in Texas during the years 1921, 1922, 1923, 1924, and 1925.”

The contract then provides how the cotton shall be classified, handled, and sold, and how settlement shall be made with the members. The association, under said contract, is given full authority to handle and sell said cotton, and also to borrow money thereon. Said contract also provides that:

Same “is one of a series generally similar in terms, comprising with all such agreements, signed by individual growers, or otherwise, one single contract between the association and the said growers, mutually and individually obligated under all the terms thereof.”

It is further provided in said contract:

“The association shall be deemed to be acting in its own name, for all such growers, in any action or legal proceedings on or arising out of this contract.”

The sole question to be determined in the piresent action is whether the fact that the respondent, who is judge of the district court of Red River county, Tex., the court where the case of H. H. Lennox et al. v. Texas Farm Bureau Cotton Association is pending, is disqualified to try that case on account of his being a brother-in-law of two certificate-members of said association, neither of whom, is named a party to said suit.

A correct decision of this case involves the-construction of section 11 of article 5 of the-Constitution of Texas and of article 15 of the Revised Civil Statutes of Texas 1925, as applied to the foregoing undisputed facts.

Section 11 of article 5 of the Constitution-of Texas reads as follows:

“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. When the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, or any member of either, shall be thus disqualified to hear and determine any case or eases in said court, the same shall be certified to the Governor of the-state, who shall immediately commission the-requisite number of persons learned in the law for the trial and determination of such cause or-causes. When a judge of the district court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case; or upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such-manner as may be prescribed by law. And the district judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law. This disqualification of judges of inferior tribunals shall be remedied and vacancies in their offices filled as may be prescribed by law.”

Article 15, Revised Civil Statutes of Texas 1925, reads as follows:

“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.”

From a reading of the Constitution in connection with the statute, it would clearly he seen that there are but three grounds of disqualification of a trial judge under our law, which are: (a) Where the judge is interested ; (b) where he is related to a party to the suit; and (c) where he has been of counsel in the case. It is conceded that Judge Williams is not “interested” and that he has not been of “eounsel”in the case. The sole remaining question is whether he is related, within the meaning of the statute, to .a party to the suit.

It has been repeatedly held, and is the •settled law of this state, that the mere fact that the trial judge is related, within the prohibited degree, to a stockholder of a capital stock corporation, does not disqualify him to try a case where the corporation is a party. Lewis v. Hillsboro Roller-Mill Co. (Tex. Civ. App.) 23 S. W. 338; Houston Cemetery Co. v. Drew, 13 Tex. Civ. App. 536, 36 S. W. 802; Kingman-Texas Implement Co. v. Herring National Bank (Tex. Civ. App.) 153 S. W. 394; and Wise County Coal Co. v. Carter Bros. & Co., 3 Willson, Civ. Cas. Ct. App. § 306.

Counsel for respondent very ably contend that the provisions of the charter and contract under investigation, when construed in the light of our Constitution and statutes .above referred to, disqualify the respondent to try the ease, and cite, among others, the following eases in support of such proposition: Duncan v. Herder, 57 Tex. Civ. App. 542, 122 S. W. 904; Jirou v. Jirou (Tex. Civ. App.) 136 S. W. 493; Hodde v. Susan, 58 Tex. 389; Simpson v. Brotherton, 62 Tex. 170; H. & T. C. Ry. Co. v. Terrell, 69 Tex. 650, 7 S. W. 670; Jordon v. Moore, 65 Tex. 363; Schultze v. McLeary, 73 Tex. 92, 11 S. W. 924; G., C. & S. F. Ry. Co. v. Looney, 42 Tex. Civ. App. 234, 95 S. W. 691; and First National Bank v. Herrell (Tex. Civ. App.) 190 S. W. 797.

The case of Duncan v. Herder merely holds that a judge who is a brother-in-law of a daughter of a testator is disqualified from hearing an action by the widow suing in her capacity as survivor of the community on a note executed by the intestate in his lifetime.

The case of Jirou v. Jirou holds that a judge who is related to the purchaser in a guardianship sale was disqualified to pass upon the report of sale. In this connection, the court, in passing on the question, says:

“The direct interest of the purchaser in such proceeding is apparent, and his right to^appear and actively participate in the proceedings relating to the confirmation of the sale or in the proceedings on appeal from the order of confirmation have been uniformly recognized by the courts,” citing authorities.

This case merely holds that a person who is directly concerned in the probate matter under adjudication is a party to the probate judgment involved.

In the case of Hodde v. Susan, it is held that, where a surety on a claimant’s bond in proceedings for the trial of the right of property is related within the prohibited degree to the magistrate before whom the case is pending, such magistrate is disqualified to try the case. This because, at the time the bond was given, the law provided that, where the claimant failed to establish his right to the property, precisely the same judgment was to be rendered against the surety as against the principal in the bond. Thus the surety was directly interested in the subject-matter of the suit.

The case of Simpson v. Brotherton holds that, where the suit involves the community, the wife is not competent to testify to transactions between her husband and the deceased concerning matters in which she has a community interest, though the husband only is named a party. This is because the wife is in law a party by representation, and in legal effect, and is bound by the judgment in so far as her community interest is concerned.

The case of H. & T. C. Ry. Co. v. Terrell holds that a juror whose wife’s sister is the wife of plaintiff is disqualified as such, on the ground that any judgment recovered in the case would be community property.

The case of Jordon v. Moore holds that, where the suit involves the community, the wife, though nominally not a party, is such in legal effect, and, if related to the trial judge within the prohibited degree, he is disqualified to try the case. The case of ¡Schultze v. McLeary in effect announces the same doctrine.

The case of First National Bank v. Herrell holds that a county judge'who was related within the prohibited degree one of the sureties on an appeal bond in a case appealed from the justice’s court is disqualified to try the case because judgment might be rendered against such surety in tlie very case being tried.

Counsel for respondent also cite as persuasive the following cases: Sovereign Camp, Woodmen of the World, v. Hale, 56 Tex. Civ. App. 447, 120 S. W. 539; New York Life Ins. Co. v. Sides, 46 Tex. Civ. App. 246, 101 S. W. 1163; Wetzel v. State, 5 Tex. Civ. App. 17, 23 S. W. 825; and Kansas City, M. & O. Ry. Co. of Texas v. Cole (Tex. Civ. App.) 145 S. W. 1098. In our opinion, these authorities are not even persuasive, for the reason that they all involve the question of the interest of the'trial judge himself; and where this is the case, an entirely different rule applies, as the trial judge is disqualified where he is either directly or indirectly interested in the result of the litigation.

Article 5763 of the Revised Civil Statutes of Texas 1925, which is a part of the law governing associations of the kind under investigation, provides:

“The provisions of the general corporation laws of this state, and all powers and rights thereunder shall apply to the association organized hereunder, except when in conflict with the express provisions of this’ chapter.”

Under the above statute the same rules should be applied to this association as is applied under the general corporation laws of this state, except when in conflict with said chapter.

We have carefully examined all of the authorities cited by respondent, and made careful investigation ourselves, and we have failed to find any case holding that the mere indirect interest of a relative of the trial judge in the result of the litigation would disqualify him to try the case; on the other hand, all the authorities we have been able to find are to the contrary.

There is nothing in the charter of said association, or the contract with its members, which, when construed in the light of chapter 8 of title 93 of the Revised Civil Statutes of Texas 1925, would give reason for' any rule that would disqualify the trial judge to try a cause merely because he is related to a certificate member of the Texas Farm Bureau Cotton Association. Certainly a certificate member of this association, who has entered into its cotton contract, has no direct interest in the litigation, and he is not a party to the suit. A certificate member 'of such an association is no more a party to the suit in question than -a stockholder of a capital stock corporation is a party to litigation of. such corporation.

We therefore hold that Hon. R. J. Williams, respondent, is not disqualified, by reason of relationship to two certificate members of said association, to try the case of H. H. Lennox et al. v. Texas Farm Bureau Cotton Association, No. 13038, now pending in the district court of Red River county, Tex.

We therefore recommend that this court issue its mandamus requiring and commanding the said R. J. Williams, district judge aforesaid, to try said above entitled and numbered cause as prayed for by the relator.

CURETON, C. J.

The opinion of the Commission of Appeals is adopted, and mandamus awarded as prayed for. 
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