1. Disqualification of Judge of Court of Civil Appeals.
When a judge of a Court of Civil Appeals does not sit in the determination of a cause, a question involving his disqualification under the Constitution does not give jurisdiction to the Supreme Court by writ of error .... 459
2. Case Adhered to.
City of Austin v. Nalle, 85 Tex. 520, adhered to, that when one judge of a Court of Civil Appeals is disqualified the remaining members constitute a court, and can determine the cause ........................... 459
STAYTON, CHIEF JUSTICE.
The judgment of the District Court was reversed and the cause remanded, but it does not appear that the ruling necessarily determines the cause.
A question arose, however, in the Court of Civil Appeals as to the disqualification of one of the judges of that court, and he declined to sit.
Jurisdiction of the Supreme Court to grant writ of error is claimed on the ground that the determination of the qualification of the judge involved the application and construction of the Constitution of this State.
That may be true, but the judge did not sit, and the validity of the action of the other judges did not depend on his sitting or refusing to sit. This was decided in case of City of Austin v. Nalle, 85 Tex. 520, and writ of error will not be granted in order to pass upon a question already settled.
The application for writ of error will therefore be dismissed.
Delivered March 5, 1894.