Love v. Gamer

On Motion for Rehearing.

DUNKLIN, Justice.

This is the second time this ease has been before this court, the determination of the former appeal appearing in Gamer et al. v. Love et al., 41 S.W.(2d) 356. The first trial of the case from which the former appeal was prosecuted was in the district court of Tarrant county before Hon. H. S. Lat-timore, district judge, and the judgment upon that trial was rendered upon an instructed verdict in favor of plaintiffs in the ease as shown in the report of the appeal therefrom.

Judge LATTIMORE, who is now Associate Justice of this court, wrote the opinion disposing of this appeal, and the motion for rehearing by the appellees is here addressed to the conclusion there reached.

In the motion for rehearing counsel for appellees requests this court to withdraw the opinion written by Justice LATTIMORE and render another opinion herein by reason of the fact that he sat as presiding judge, in the first trial of the case,' from which the former appeal was prosecuted, and there rendered a judgment against these appellees in obedience to an instructed verdict to the jury, and further beeapse he was not present when this appeal was submitted to this court on oral argument. It is also recited in the motion that the second trial of the case, from which the present appeal was prosecuted, was before Judge Marvin H. Brown, who succeeded Judge LATTIMORE upon the district court bench and who tried thg case the, second time and instructed a verdict in fwvor of these appellees.

In support of the motion the following remarks of Justice Gaines in Galveston & H. Inv. Co. v. Grymes, 94 Tex. 609, 63 S. W. 860, 64 S. W. 778, are cited: “It has been the uniform practice in this court for a judge who tried the case in the court below and subsequently became a member of this court to decline to sit in the case upon appeal. This has, however, proceeded from motives of delicacy, and not because it has ever been thought that the judge is disqualified to sit.”

Manifestly, the language used by Chief Justice Gaines, quoted above, has no proper application here to support the criticism of the action of Justice LATTIMORE in writing the opinion on the present appeal. It is clear that what was said by Justice Gaines inj that ease had reference only to the action of an appellate judge to sit in a case where an appeal is prosecuted from a judgment rendered by him in the trial court. The records of this court show that its judges have frequently written opinions disposing of appeals from judgments rendered by them as judges of the trial court from which the appeals were prosecuted; the cases having fall*396en to them on drawing after submission. And in fairness to Judge LATTIMORE we will add that since he has become a member of this court he has uniformly declined to participate in the disposition of appeals from judgments rendered by him as a trial judge; his action in that respect being influenced by the remarks of Justice Gaines, quoted above.

We have examined the transcript on the former appeal now on file in this court, as we are authorized to do, If Tex. Jur. p. 201, § 27, and find that the same answer and cross-action presented on the second trial was embodied in the defendants’ pleadings on which the first trial was had, and that the same demurrer to the answer and cross-action sustained by Judge Brown on the second trial was presented and overruled by Judge LAT-TIMORE on the first trial. We also find that the appellees on this appeal, who were the appellants on the former appeal, assigned error to that ruling; and while that assignment was not specifically discussed, it was inferentially overruled, since this court held that the facts alleged in the answer and cross-action should have been submitted to. the jury as a disputed issue. The conclusion reached appearing in the former opinion of this court was: “While Charles Gamer, Sr., testified on the trial that out of his own personal funds he had paid off the obligations of the Gamer Paper Company, amounting to some $46,000, and failed to plead such payments as a consideration supporting the conveyance so taken by him, yet we believe that such testimony, in connection with other testimony and circumstances in evidence, was sufficient to require the submission to the jury of the issue, whether or not the- corporation was then insolvent and whether or not the conveyance to him was for the purpose of defrauding the creditors of the Gamer Paper Company, as found by the trial judge.” 41 S.W.(2d) 356, 359. And an application for writ of error to the former judgment of this court was dismissed for want of jurisdiction.

In. the present motion- for rehearing this is said: “This case, as to the facts, has been fully developed and the same testimony adduced upon this trial as upon former trial. The appellants could not establish fraud as a matter of law then; and now, there is not a scintilla of fraud established or intimated in the evidence.”

Reference is made to certain testimony of Charles Gamer on the last trial to support the contention that the same conclusively refuted the grounds upon which the cross-action was based. We shall not undertake to review that testimony because the decision of this court on first appeal, that the evidence introduced then was sufficient to require submission to the jury of the issues embodied in the answer and cross-action, became the law of the case; and binding on the trial court on the second trial and also on this court on this the second appeal. 3 Tex. Jur. §§ 939 to 941, inclusive, beginning on page 1338. Furthermore, after the cross-action had been stricken out on the demurrer, appellants were left without any pleading to serve as a basis for introduction of any; other evidence besides that of Charles Gamer, referred to in this motion. We know of no rule which requires the presence of all the members of an appellate court when a case is submitted on oral argument.

We adhere to the conclusions expressed in the opinion of Justice LATTIMORE on the original disposition of this appeal, and therefore appellants’ request that the same be withdrawn is refused; and the motion for rehearing is overruled.