At the points presented by the motion for a rehearing in this case, save one, were very carefully considered and were disposed of in the former opinion. We do not see that the questions there determined demand any further discussion.
It is now, however, urged, for the first time, that the judge who heard and determined the cause in the trial court was disqualified to sit in the case, and that, therefore, neither that court, the Court of Civil Appeals, nor this court acquired jurisdiction of the cause. The question was not raised in the trial court, but is presented for the first time in this court, and the fact of disqualification is attempted to be shown by an affidavit.
This court has "power, upon affidavit or otherwise, as by the court may be determined, to ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction." Const., art. 5, sec. 3. But we do not understand that this provision of the Constitution applies to questions which were put in issue or which could have been put in issue in the trial court, but only to such as may arise after a final disposition of the case in the court from which the appeal is taken. It has been practically so decided. Chrisman v. Graham, 51 Tex. 454, and cases cited. Every court must in the first instance determine its own jurisdiction; and when a question affecting its jurisdiction has arisen in a Court of Appeals after the final decision of the matters in controversy in the court a quo, the appellate court must of necessity hear evidence dehors the record in order to determine it. *Page 551
The question whether or not the trial court had jurisdiction must be determined by the record.
The motion is overruled.
Motion overruled.
Delivered June 19, 1893.