The motion for rehearing filed in this cause requests the court, in the event the motion is overruled, to disclose in its order overruling the motion that Beauregard Bryan, one of the special judges sitting, resided in Brenham, Washington County, Texas, and not within the Third Supreme Judicial District, and that he and Associate Justice Collard constituted the court that rendered the opinion in this case. As the motion for rehearing in this case is overruled, the questions raised in same being hereafter noticed, we comply with the request of appellants in making additional findings of fact, as follows, to wit:
1. That Beauregard Bryan, who sat as special judge in the above cause, was at the time of his appointment and at the time of his qualification and all the time of his service, and is now, a resident of Brenham, Washington County, Texas, and is not a resident of the Third Supreme Judicial District of Texas.
2. That Associate Justice L.H. Brown, specially appointed with Justice Bryan, did sit in all the trial of this cause, and participated in *Page 399 and concurred in the decision of all the questions in the case in conjunction with Justices Collard and Bryan, but Justice Brown was not present when the opinion was delivered. Justice Brown was present and heard the case submitted for rehearing and participated in the same, and was present with Justices Collard and Bryan when the motion for rehearing was overruled, and this decree entered and facts found.
Conclusions of Law. — The only question we deem necessary to discuss in the motion for rehearing is the one made, that specially appointed Justice Bryan is disqualified to sit in this case, because he was not a resident of the Third Supreme Judicial District.
We do not believe this position well taken. The Constitution and the statute creating the Courts of Civil Appeals do provide that the permanent members of the court elected should be resident citizens of the district, but are silent as to the qualifications of the persons selected and commissioned by the Governor to sit as special judges, except that both the Constitution and the statute creating the Courts of Civil Appeals say: "When the Courts of Civil Appeals or any member of either shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the Governor of the State, who shall immediately commission the requisite number of persons learned in the law for the trial and determination of such case or cases." This language is broad and general, and not restrictive, and does not limit — except in the particular named, to wit, that he shall be learned in the law — the qualifications of the person appointed. We believe, therefore, that Justice Bryan, though he resided outside the Third Supreme Judicial District, was not disqualified. But if he were, this question should have been raised in limine. Schultze v. McLeary, 73 Tex. 94.
The motion for rehearing is overruled.
Overruled.