Turner v. Larson

JACKSON, Justice. The appellee, a feme sole, as lessor, instituted this suit in the county court of Parmer county against the appellant, lessee, to recover $750 on a written lease duly executed by the parties. The contract is. dated April 28, 1931, and leases to appellant the land therein described “for the term of thz'ee (3) years beginning the 15th day of May, A. D. 1931, and ending the 15th day of May, 1934, paying thereon the sum of Two Hundred Fifty ($250.00) Dollars, payable May 15th each year in advance.” The appellant admitted that he executed the contract, took possession of the land by virtue thereof, occupied' and farmed it for one year, and had 'never., paid either of the rent installments. Under these facts, .the appellee was entitled to a directed verdict for the sum recovered and appellant’s assignments attacking the charge of -the court as'erroneous are therefore immaterial. In a erossraetion-filed by. appellant he alleged -that about August 1, 1932,- he was*-unlawfully and "illegally evicted from the premises by appfell'ée'and-tké'reby'suflieíed’damág-es'in the sum'of $1,920. That'’hilt"for 'sa'id eviction he would háve growrij harvested, and marketed a crop on the premises, at-the rea’sonable cost of $424, and that.the rent for the ■three years' >amounted-tO'$750. He deducted these -two'"items‘from 'the'$l,920''damages’he Claimed'he--hadsustained', aii’d’sought to re-‘édyer ágainst’appellee' a balance of '$746.' The court was without jurisdiction, of the cross-action as alleged and correctly refused appellant any judgment thereon. Gimbel et al. v. Gomprecht et al., 89 Tex. 497, 35 S. W. 470. The 'case was tried before a special Rdge, for"whicti reason the. appellant challenges the. validity ofthe. judgment, against ■ him. The record-discld-ses by an agreement executed by the attorneys of .the parties that: “The duly, elected and.qualified county judge of Parmer County, Texas, was. .disqualified himself to hear and determiné this cause, Whereupon it is' agreed’ by' and'-between''the plaintiff and-the defendant in’’this cau’se that J. D. Thomas be' appointed'and he'is hereby appointed by said parties to try this- cause.” J. D. Thomas took the oath of office-and tried the ease as special judge, after which appellant, for the first time in his motion for a new trial, claimed that the regularly elected and qualified judge was not- disqualified. This contention is not supported by any evidence offered either on the trial or on the hearing of said motion. It is an ex parte statement made by attorneys for appellant in their motion for a new trial, and hence, under the facts revealed by this record, cannot be sustained. Compere v. Girand (Tex. Civ. App.) 42 S.W.(2d) 278. The Judgment is affirmed.