The opinion
On Motion for Rehearing.
The motion for rehearing filed by plaintiff in error has been considered.
Grounds 9 and 10 of this motion make the point that the special judge who tried this case could not make up a statement of facts, the regular judge of the trial court having resumed office; and that plaintiff in error ought not to be required to take his statement of facts from one no longer connected with court or cause.
The findings made in the order denying the prayer for a court reporter’s transcript show that this cause was tried before a special jucjge who had been elected by the practicing lawyers upon the illness, and the resulting incapacity to hold the court, of the regular judge of the trial court. Since this order was made by the regular judge, it is apparent (and, indeed, this fact is evidenced by briefs and motion for rehearing) that the regular judge had resumed the functions of his office when plaintiff in error was attempting to perfect his writ of error to this court.
Under Rule 377, Texas Rules of Civil Procedure, the judge must make up a statement of facts when the parties disagree ; power so to do is vested in “the trial court or judge thereof”, and we hold upon the following grounds that the special judge who tried this case had the power to perform this function in this case after he *323 had relinquished the office to the regular judge of the trial court:
(1) This cause was filed and was tried in the District Court of Jefferson County, 60th Judicial District, and the special judge was elected, and he took office, under Section 23 of Article 2092, R.S.1925, as amended, Vernon’s Ann. Civ. St. art. 2092, subd. 23. This statute provides that this special judge “shall have and exercise all the powers and duties which the regular Judge of said Court could, have and exercise."
(2) One of the powers which the regular judge of the trial court “could have and exercise” is expressed in art. 2248, R.S.1925, as follows: “Any judge of a district * * * court whose term of office expires * * * during the period prescribed 'for the filing of the statement of facts and bills cf exception, or conclusions of law and fact, may approve such statement of facts and bills of exception, or file such findings of fact and conclusions of law in such cause, as provided in this title * * This statute seems to have had its source in Chapter XXV, Acts of 1903, p. 32. See art. 2076, R.S.1911.
(3) Let us assume (we do not so decide) that upon the regular judge’s resumption of his office, the term of office of the special judge came to an end in the same sense as would the term of office of the regular judge. Upon this assumption, then, the power which art. 2248 vested in the regular judge to approve the statement of facts after he left office also vested in the special judge, under and by virtue of Section 23 of art. 2092, after he left office, in cases which he had tried.
(4) However, there are authorities indicating that the special judge’s authority to try the cause included the power to make up a statement of facts after the regular judge resumed performance of his duties.
It was held in Washington v. First National Bank, 64 Tex. 4 , that a special judge could approve bills of exception and a statement of facts in the case which he had tried. The court said, 64 Tex. at page 6 : “The charges, bills of exception and statement of facts were properly signed by the special judge who presided at the trial and who was duly chosen for that purpose ” The words underlined show that the special judge had been selected, or appointed, to try only the particular case; and since the Code of 1879 was in effect at the time, the relevant statutes were arts. 1091 to 1093, inclusive, of that Code. The only authority conferred, in terms, by these statutes upon such a special judge was authority to “try” the case. The court refers to no statute; but we interpret this decision as holding that the authority to “try” the cause comprehended authority to make up bills of exception and a statement of facts. We have not found in the 1879 Code such a provision as art. 2248, R.S.1925, which, as stated, apparently had its source in an Act passed in 1903. Provision for Bills of Exception was made in art's. 1358 to 1367, inclusive, of the 1879 Code, and for a statement of facts, in arts. 1377 to 1379, inclusive, of that Code. None of these statutes refers to special judges.
Other decisions of the Supreme Court are consistent with that in Washington v. First National Bank. Thus, in Harris v. Musgrave, 72 Tex. 18 , 9 S.W. 90, 91 , it was held that the authority of a special judge, appointed under art. 1092, R.S.1879, to try a certain cause, comprehended authority to try a subsequent suit between the parties to enjoin execution under the judgment rendered by the special judge. The court said: “We think the special judge who qualifies under such appointment has full authority to hear and determine, not only the particular suit then pending, but also any litigation between the same parties growing out of that particular suit.”
In Storrie v. Shaw, 96 Tex. 618 , 75 S.W. 20, 21 , the court held that a regular judge who tried the case had power to make and file conclusions of law and of fact after he left office. No statutory authority similar to art. 2248, R.S.1925, was referred to; and the power was declared to be a survival, that is, in effect, an incident of the office. The court referred to a conflict of authority and Said: “The weight of authority and the better reasoning support the answer that we have made to this question. It would be impossible for a judge who had not heard the testimony to express in the form of conclusions of fact the im *324 pression which the conflicting evidence made upon the mind of one who heard it. Therefore it is especially important that the judge who tried the case should make the conclusions of fact. We fail to see any sound objection to the conclusion that upon the retirement of a judge the judicial function survives and continues so 'far as necessary for him to complete that which reflects the operation of his own mind or relates to his own conduct in the particular case.”
These remarks have some application to the making of a statement of facts upon a disagreement of the parties, and if the regular judge’s power to make and file conclusions of fact survives his term of office, so should a special judge’s power to make up a statement of facts in a case he had tried. We note that the survival of power declared in this case is now expressly enacted in art. 2248, R.S.1925.
In Shaeffer v. Smyth, 37 S.W.2d 1012, 1014 (Approved), the Commission of Appeals held that the regular judge of one district court, sitting for the regular judge of another district court, had authority to approve the statement' of ifacts in the cause he had tried. The particular cause was tried in the 95th District Court by the judge of the 71st District Court. These two districts were, and are, separate territorial jurisdictions; we infer that the judge of the 71st District tried the case under an assignment to duty, made under art. 200a.
The statement of facts was approved in this manner; the judge who tried the cause in the 95th District .Court communicated with the regular judge of that court (after both judges had resumed their respective benches) and requested said judge to sign the statement of facts for him. The judge of the 95th District Court complied with this request by signing the name of the trial judge, showing, however, that this was done by him for the trial judge. The Commission of Appeals held this statement of facts to be valid, saying: “In view of the foregoing statutes (provisions of Art. 2092 and, perhaps, Art. 200a), we think the sound rule to be that, where a statement of ■ facts has been accepted and approved by counsel for both sides, the judge who actually heard the evidence in the case may properly request and direct any judge to sign his name thereto in approval thereof, and the statement of facts so signed and approved is entitled to consideration.” The language implies, of course, that the approval upheld was the approval of the trial judge, made after he had returned to his own court.
In Johnson v. Bussey, Tex.Civ.App., 95 S.W.2d 990, 992 , (writ refused), the question was, whether a special district judge, elected under art. 1887, R.S.1925, et seq., could extend the' term and complete the trial of a cause after the regular judge had resumed performance of his duties. The court referred to the abbreviation made by the codifiers in formulating art. 1887 (and the resulting omissions in the law) and held: “But article 1887 does provide that he ‘shall hold the court and proceed with the business thereof.’ By which we think it is plainly meant to vest the special judge with the same powers and to impose upon him the same duties, in the discharge of that command, as a regular judge, and that his regular term of office ends when the necessity therefor ceases. Therefore it is concluded that Cecil Storey, as special judge presiding, had the same power to extend the term of court to complete the trial of the case as is vested in a regular judge by article 1923, providing * * Concerning what effect was to be given the return to duty of the regular judge the court held: “ * * * we do not think the return of a regular judge will have the legal effect to oust jurisdiction of the special judge to complete the trial of the case in which he is then engaged, or divest him of authority to hear motions, or to do such other things as are necessary to make orderly disposition of the matters which have been undertaken by him. In the facts here shown, the trial was being had to the court without a jury; most, if not all, the evidence had been heard at the time of the return of the regular judge. It could not reasonably be contended that the regular judge could properly proceed with the trial and render judgment upon the facts heard only by the special judge. Therefore to hold that jurisdiction of the special judge *325 ceased, as a matter of law, regardless of circumstances, upon return of the regular judge would not only result in confusion, but also injustice, a waste of time, and unnecessary expense to the litigants as well as to the state. Procedure of our courts is intended to be practical and orderly that justice may be done, hence we do not think the return of a regular judge ousts jurisdiction of the special judge to do those things necessary to an orderly and complete disposition of the matters which he has undertaken.”
It might be argued from these decisions that the special judge who tried the case before us had the power, as an incident of his election, independently of art. 2248, R.S.1925, to approve bills of exception and statements of facts after he had left the bench, filed in cases he had tried; but the question need not be decided. We are convinced that he had this power, either under art. 2248 or by virtue of his election and qualification as special judge.
(5) Our conclusion fits within the meaning of terms used in Rule 377, which vest power to make up the statement of facts in “the trial court or judge thereof”.
We are also of the opinion that under these terms, potential authority to make up the statement of facts is also vested in the regular judge of the trial court under Rule 377. See the reasoning and comments in: Pratley v. Sherwin-Williams Co., Tex.Com.App., 36 S.W.2d 195 ; Guess v. Phelps, Tex.Civ.App., 41 S.W.2d 75 ; Rankin v. Nash-Texas Co., Tex.Civ.App., 58 S.W.2d 902 ; Schulz v. Boyd, Tex.Civ.App., 32 S.W.2d 483 ; Rule 330.
Further comment regarding the other grounds of the motion for rehearing is not required. The motion for rehearing is overruled.