Stark v. Whitman

Willie, Chief Justice. We are of opinion that the court below erred in sustaining Whitman’s plea of personal privilege and dismissing the cause. It has heretofore been held by this court that such a plea should anticipate and exclude all such supposable matter as would, if alleged on the opposite side, defeat the plea. Breen v. T. P. R. R. Co., 44 Tex., 302; H. & T. C. R. R. Co. v. Graves, 50 Tex., 200. The plea filed in this cause merely alleged the residence of defendant to be in the county of Newton, and did not negative the fact that he came within any of the exceptions which would have given the county of Orange jurisdiction of the cause. We think, therefore, that the plea was not good and should not have prevailed. The action of the judge below in refusing to recuse himself, because of an alleged interest of his brother in the event of the suit, is also assigned for -error. If his brother had such interest, and this fact had been brought to the attention of the court by satisfactory evidence, it was his duty to decline sitting in the cause, and his refusal to do so would have been error. The objection was made, and it is stated that it was overruled without hearing evidence. This does not necessarily imply that the court refuséd to hear evidence, but may as well mean that none was offered. It is the duty of the party bringing the cause to this court to see that his case is properly presented below, and that the transcript cor [377] rectly shows this to be the case. Ho presumptions will be made in his favor; on the contrary, they will be indulged against him in doubtful cases, and hence we must infer that no evidence was offered in the first instance to sustain the objection. The subsequent proceedings do not fully or certainly develop the fact that a relative of the judge was interested in the cause. This may be shown upon a new trial, and the plaintiff in error will be allowed upon such trial to introduce evidence in limine as to such disqualification. [Opinion delivered January 23, 1883.] For the error of the court in sustaining the plea of personal privilege filed by defendant below, the judgment is reversed and the cause remanded. Reversed and remanded.