G. W. Morris v. A. A. Foreaker et al., 4 Willson 57

Opinion by Will-son, J. § 37. Justice of the peace; if disqualified to try a case, may transfer it to nearest justice. Appellant brought this suit in justice’s court of precinct No. 1. The justice of the peace of that precinct was disqualified from sitting in said case because he was related to appellant within the third degree, he being the brother-in-law of appellant. [R.

S., art. 1538.] Said justice transferred the cause to the justice of the peace of precinct No. 2, the nearest justice of the peace in the county qualified to try the same, and said last-named justice tried and determined said cause adversely to appellee, who carried the case to the county court by appeal, where the same was dismissed upon the ground that the justice of the peace of precinct No. 2 had no authority to try the same; and from said judgment of dismissal appellant prosecutes this appeal. We decide that said judgment of dismissal is erroneous.

We do not think the suit was improperly brought before the disqualified justice of precinct No. 1. [Smith v. Hardin, 68 Tex. 120.] It might have been instituted properly in the justice’s court of precinct No. 2 [R. S., art. 1560], but the statute does not require imperatively that it should have been instituted in that court. It was proper for, and the duty of, the disqualified justice to transfer the case, and by such transfer the justice of precinct No. 2 acquired jurisdiction of the case. [Id., art. 1563.] December 7, 1889. Reversed and remanded.