On Rehearing. On submission of this case, Mr. Chief Justice HIGHTOWER recused himself, and on motion of appellants has filed the following certificate, duly verified by him, explaining his action:
"When this cause was submitted in this court on the 10th day of March, 1927, the writer had reached the conclusion that he was disqualified to sit in its disposition, and so held, and refused to sit. Thereupon the cause was submitted, and was thereafter decided and disposed of by the two associate justices of this court, Hon. Daniel Walker and Hon. W. B. O'Quinn, the writer taking no part in the discussion and disposition of the cause.
"Since the decision of this cause by the associate justices of this court, and pending the motion for rehearing, one of the attorneys for the appellants, Hon. W. D. Gordon, has requested me to cause to be entered upon the minutes of this court my reasons for holding myself disqualified to participate in the decision of this cause, and, complying with that request I make the following statement, which the clerk of this court will enter upon the minutes:
"During the year 1912 the law firm of Hightower, Orgain Butler, of which firm I was the senior member, were general attorneys for the Houston Oil Company of Texas, and had active management of all the litigation in which the Houston Oil Company of Texas was involved throughout East Texas. During the latter part of August, 1912, a suit of trespass to try title was filed in the district court of Tyler county, Tex., by Adelaide A. Aiken and others against the Houston Oil Company of Texas to recover title and possession of the George T. W. Collins league of land. As I now recall, the plaintiffs in that cause were claiming the land as heirs of one John G. Aiken. At that time the Houston Oil Company claimed to own all of the George T. W. Collins league by fee-simple title, and, in due time after the filing of said suit against it, my firm prepared and filed the answer of the Houston Oil Company of Texas as codefendant in that cause, and continued to represent the Houston Oil Company of Texas in that cause as long as it remained on the docket of the district court, and until it was finally dismissed by the plaintiff's in that suit, some time in the year 1915. The writer, as the senior member of the firm of Hightower, Orgain Butler, had active charge of said cause, and on several occasions appeared in the *Page 697 district court with a view to trying the cause, and would have represented the Houston Oil Company of Texas as his client in that cause to final disposition had the case not been disposed of by dismissal.
"I am unable to state in detail the questions that were involved in the cause of Adelaide A. Aiken et al. v. Houston Oil Company of Texas above mentioned, but, as I now recall, there was no question of innocent purchase involved, but the Houston Oil Company of Texas was claiming the land both under record title and by limitation, and the writer made as thorough examination of the facts and law necessary to uphold the Houston Oil Company of Texas title as was possible at that time. In the present cause the same parties who were parties against the Houston Oil Company of Texas in the cause of Adelaide A. Aiken and others v. Houston Oil Company of Texas are now codefendants with the Houston Oil Company of Texas in this cause, the plaintiffs in which were not parties on either side in the former cause. At the time I held myself disqualified to sit in the disposition of the present cause by reason of having been of counsel for the defendant, Houston Oil Company of Texas, in the former cause. I was not absolutely sure that I was so disqualified, but I thought and felt that my siting in this cause would be of doubtful propriety, and I think so still. It is true that upon the former appeal of this cause to this court I did sit in its disposition, but at the time I did so I had forgotten all about having been of counsel in the former suit above mentioned, and did not discover that I had been so of counsel until after the disposition by the Supreme Court of the writ of error granted in the former appeal.
"The clerk of this court is ordered and directed to enter upon the minutes of the court the above-stated reasons for holding myself disqualified to sit as a member of this court in the disposition of this cause. This 2d day of May, 1927."
On the theory that the facts thus found constitute a legal disqualification, appellants advance on this rehearing the following proposition:
"These appellants in the case at bar have been denied, by this tribunal, due process of law guaranteed to them by the Fourteenth Amendment of the Constitution of the United States and by the Constitution and laws of this state."
In their motion appellants recite the fact of the former appeal of this case, giving the result of the trial in the lower court, its decision in their favor, the extent of the interest recovered by them, the appeal by these appellees, our order reversing the case, and the judgment of the Supreme Court affirming our judgment of reversal. The facts on these issues are fully reflected in the reports of the former appeal cited in our original opinion. Under the facts thus stated appellants advance the following additional proposition:
"The facts thus recited and hereunto verified by affidavit are submitted as establishing the want of power and jurisdiction of this honorable Court of Civil Appeals to enter the order which it did enter on the 1st appeal from the judgment of Judge Singleton, whereby that judgment was reversed and annulled, for that the disqualification of the Chief Justice to participate in that decision rendered the action of the court in reversing that judgment null and void, and all proceedings thereafter taken culminating in the attempted destruction of the judgment of the lower court first entered in this case are likewise null and void."
Both these propositions must fall, since, as we understand the decisions of our courts, the facts certified to by Judge Hightower do not constitute a legal disqualification. He expressly found, and his finding is not challenged by appellants:
"In the present cause the same parties who were parties against the Houston Oil Company of Texas in the cause of Adelaide A. Aiken and others v. Houston Oil Company of Texas are now codefendants with the Houston Oil Company of Texas in this cause, the plaintiffs in which were not parties on either side in the former cause."
From this finding it appears that none of the appellants in the present case was a party to the suit in which he was of counsel. Therefore this is not the case in which he was of counsel, though the subject-matter of this litigation is the same as in that case. We think this finding makes this a case on all-fours with Glasscock v. Hughes, 55 Tex. 468, where it is said:
"The judge is prohibited from sitting to try a case `where he shall have been of counsel in the case.' We do not think `to have been connected as counsel at one period with the matters, or a portion of them, in litigation in this suit, * * *' was sufficient to disqualify him."
In Ruth v. Carter-Kelley Lumber Co., 286 S.W. 905, this court expressly recognized this distinction, saying: "The parties are not the same," citing "Taylor v. Williams, 26 Tex. 583; Glasscock v. Hughes, 55 Tex. 461; King v. Sapp, 66 Tex. 519, 2 S.W. 573; Cullen v. Drane Son,82 Tex. 484, 18 S.W. 590; Galveston H. Investment Co. v. Grymes,94 Tex. 609, 618, 63 S.W. 860, 64 S.W. 778; City of Austin v. Cahill,99 Tex. 172, 201, 88 S.W. 542, 89 S.W. 552; Waters-Pierce Oil Co. v. Cook, 6 Tex. Civ. App. 573, 26 S.W. 96; Stockwell v. Glaspey (Tex.Civ.App.) 160 S.W. 1151."
While the facts of this case do not constitute a legal disqualification, yet we agree with Mr. Chief Justice HIGHTOWER that they constituted a sufficient warrant for his act in recusing himself on motives of delicacy and propriety, as recognized by Mr. Chief Justice Gaines in Investment Co. v. Grymes, 94 Tex. 618, 63 S.W. 860, 64 S.W. 778.
It is now the settled law of this state that a judgment rendered by two members of a Court of Civil Appeals, where the third *Page 698 member is recused, is a valid judgment. City of Austin v. Nalle,85 Tex. 520, 22 S.W. 668, 960.
The motion for rehearing is in all things overruled.