L. Winston v. H. Masterson et al., 87 Tex. 200

GAINES, Associate Justice. C. Davis, represented by H. Masterson as his attorney, recovered a judgment against L. Winston in a County Court of which Hon. A. R. Masterson, a brother of the attorney, was the judge. H. Masterson did not appear as a party to the cause, but he had a contract with the plaintiff under which he was to receive for his services a contingent fee equal to one-half of the sum to be recovered. No question of disqualification of the judge was raised on the trial, nor was the judge aware that his brother had an agreement under which he was to receive the contingent fee.

This suit was brought to enjoin the enforcement of the judgment, on the ground that the county judge was disqualified to try the cause; and whether he was disqualified under the facts existing is the question certified. The Constitution declares, that “ No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected by affinity or consanguinity within such degree as may be prescribed by law.” Const., art. 5, sec. 11.

The judge and the attorney were connected within the degree prescribed by law, and the question arises whether the attorney was a “party” to the suit within the meaning of the Constitution; for if he was not, the judge was not.disqualified. In ascertaining the meaning of the words used in a Constitution or statute it is the duty of a court to look to their meaning as used in the particular connection, and to apply that meaning when and in reference to a matter in which a word has a technical signification, it is proper to attach that meaning to it.

The words “party” and “parties,” when used in connection with suits or actions, are technical words, the meaning of which is as certainly fixed as any words in the language. In Bank v. Cook, 4 Pickering, 411, it was said: “ We are to ascertain the true meaning of the Legislature in the use of their statute, and we are to consider them, when legislating upon subjects relating to courts and legal process, as speaking technically, unless from the statute itself it appears that they made use of the terms in a more popular sense.

The word party there is unquestionably a technical word, and has a precise meaning in legal parlance. By it is understood he or they by or against whom a suit is brought, whether at law or in equity; the party plaintiff or defendant, whether composed of one or more individuals, and whether natural or legal persons; they are parties in the writ, and parties on the record, and all others who may be affected by the writ indirectly or consequentially, are persons interested, but not parties.” This is the meaning attached to the words when used in such a connection, in the following cases: Douglass v.

Gardner, 63 Me., 462; Hunt v. Haren, 52 N. H., 169; Robinson v. Commissioners, 37 Ind., 335; Walker v. Hill, 21 Me., 482; Farrar v. Parker, 3 Allen, 557; Thayer v. Overseers, 5 Hill, 443; Cooke v. Cooke, 41 Md., 369; Owens v. Gotzian, 4 Dill., 438; Seeley v. Clark, 78 N. Y., 220. That this is in the sense in which the word parties is used in that part of the Constitution above quoted is evident from another clause in the same

article which declares, that “ 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 cause.” No person not a party to the record could give consent in such a case or otherwise control it, no matter what his interest in the litigation might be. The statutes upon the same subject show intent to use the word in the same sense. Rev. Stats., arts. 1091, 1092, 1093.

If relationship to one interested in the result of an action would have disqualified the county judge, then he would have been disqualified, although the interest of his brother was contingent. Chambers v. Rodgers, 23 Texas, 113. Interest of a judge in a matter in litigation disqualifies him, but his disqualification on account of some interest other persons may have, under the terms of the Constitution, arises only when such persons are related to him within the prescribed degrees and are parties.

The foregoing opinion was prepared by the Chief Justice just before his enforced absence from the court by reason of sickness. Since it is wholly improbable that he will be able to resume .the bench before the end of the term, we now adopt and file it as the opinion of the court. It remains only to announce the formal answer to the question certified, which is, that in the opinion of this court the Hon. A. R. Masterson was not disqualified to sit in the case by reason of his brother’s interest in the result of the suit. Delivered June 28, 1894.