Sarah Dewitt et al. v. Andrew Herron, 39 Tex. 675

Ogden, P. J. This cause has once been decided by this court, and is reported in the 9th Volume of the Reports. The original .suit was instituted in Guadalupe ■county, where the land in dispute is situated. The cause, by a change of venue, was taken to Bexar county, from whence it was appealed to this court, and the judgment was [affirmed against the appellants. Two years after-wards this’suit was instituted in Guadalupe county, and, by change of .venue, removed to Travis county, and is how here again on appeal. The defendants below plead .ihe former adjudication in bar of this suit, and also plead ■to the merits.

It is claimed by appellants that the former judgment rendered in Bexar county, and affirmed by this court, is null and void, because of the want of jurisdiction of the court in that county. It is contended that there was no law authorizing a change of venue from one county or district to another, when the original suit was decided in Bexar county, because of the relationship of the presiding judge to one or more of the parties. We think a careful examination of the law in force in 1847 will clearly-settle the question in favor of the power of the court to order -such change.

The statute of 1843 provides that it shall be the duty of district judges to change the venue of any cause in which said judge may be interested, upon the motion of any practicing attorney. There were also statutés of 1841 and 1843, directing and requiring a change of venue for other causes. The Constitution of 1845 provides that ‘6 The Legislature shall provide fora change of venue in civil and criminal cases.” It further provides, in

Article 4,

Section 14, that no judge shall sit in ■any cause wherein he may be interested, or where either of the parties may be related to him within a certain degree. While the act of 1846 provides that district judges may order a change of venue, under the rules and regu-* •lations prescribed by law, it also provides for the exchange by judges in certain cases. The Constitution and the above laws were all in force in 1847, and we think furnished an abundant authority -in the District Courts to order a change of venue in causes wherein they were disqualified.

The acts of 1841-3-4 prescribe the rules and regulations by which a change of venue is made.

The Constitution disqualifies a judge from sitting where either party is related to him; and the act of 1846 empowers the judge to order a change of venue, without limitation, excepting it must be done ■.under the rules and regulations prescribed by law. ■ It may be true that until the act of 1854 there was no law specifically authorizing a change of venue where the judge was related to one of the parties, still we are of - the opinion that a reasonable construction of the Constitution and laws in force in 1847 would give ¡the district judges full authority to order a change of venue of a case, especially in civil causes, whenever the judge was disqualified to sit in the case.

And this view of the law as it then existed must have been entertained by this court when the cause was here before, since there were distinct bills of exceptions taken to the ruling of the court in ordering a change of venue, and notwithstanding this court took jurisdiction of the appeal from Bexar county and affirmed the judgment. But it is claimed that the judgment rendered in Bexar county was and is void, because of the fraudulent acts of appellants’ counsel.

We have been unable to discover . any proof of fraud on the part of Neil, or any one else,. on the trial of the casein Bexar county; and though there may be a technical objection to the charge of the court in relation to the allegations of fraud, and the testimony offered to prove the same, yet we think that error (if one) could not have affected the judgment, since there was no evidence of any fraudulent acts on the part of the attorney who concluded the case.

He may have erred, but we would hardly be willing to announce the doctrine that whenever an attorney erred he thereby committed a fraud, • or that his error was even a badge of fraud. If the attorney .acted in good faith, and prosecuted the case to the best of his ability, the simple fact that there was a deed on record of nearly twenty years standing which showed that- he was interested in a portion of the land adversely to his client, could by no means vitiate the judgment of the District and Supreme Court.

We see no good reason to declare the judgment of the District Court of Bexar county rendered in this cause;, and the decision of this court affirming the same, null and void. And therefore we must hold that the court erred in sustaining the exceptions to the plea of res adjudicada. But as the case was submitted to a jury upon the merits of the cause, and a j udgment rendered for the defendants, we will now affirm that judgment, without a further review of the facts of the cause, or of the many errors complained of as having been committed upon the trial. The judgment is affirmed. Affirmed.

Motion for rehearing overruled.