Hunnicutt v. State

• Decision Date: 25 June 1889
• Citation: 12 S.W. 106
• Parties: HUNNICUTT <I>v.</I> STATE <I>ex rel.</I> WITT.
• Court: Texas Supreme Court

12 S.W. 106

HUNNICUTT

v. STATE ex rel. WITT.

Supreme Court of Texas.

June 25, 1889.

Appeal from district court, Dallas county.

Seay, Crosby & Lauderdale, for appellant. Kearby, McCoy & Hayter, for appellee.

STAYTON, C. J.

This proceeding was instituted by the county attorney for Dallas county on relation of John T. Witt, and is an information in the nature of quo warranto to test the right of appellant to the office of assessor of taxes. Appellant and relator were opposing candidates for the office at the last general election, and, a certificate of election having been issued to the former, the latter claims that this was wrongful, and that in fact he was elected to the office, his right to which he now seeks to establish. The information alleges that relator received seven votes more than were received by appellant, and that the votes at all the election precincts were correctly estimated by the county commissioners' court, except the vote cast at precinct 58, which, it is alleged, was not estimated at all, on account of defective returns. It is alleged that at that precinct relator received seven more votes than did his opponent; which, if true, elected him, if the votes of other precincts, as estimated, were legal votes. The value of the office was alleged to be $5,000, and the uncontroverted evidence was that the office was worth from four to five thousand dollars. Appellant answered by exceptions, general and special, general denial, and specially averred that there was a failure to legally hold an election in precinct No. 58, irregularities in precincts numbered 4 and 5, and that designated persons not legal voters had voted for relator. The information was filed November 29, 1888, and the original answer on December 19th following. On January 3, 1889, the county attorney, at his own instance, filed a supplemental information, in which he alleged that certain votes cast for appellant were illegal, and that the commissioners' court had not made a proper count of the votes cast at precinct No. 32. Subsequently appellant filed a supplemental answer, which contained general and special exceptions and a general denial, and on March 11th filed a motion to strike out the supplemental information. The grounds of this motion were that the supplement was not filed on relation, but solely at the instance of the county attorney; that it set up new matter, and was in effect a new proceeding. On March 12th appellant filed a motion to dismiss the original information, on the ground of supposed conflicts between that and the supplement as to parties and subject-matter, and on the further ground that the filing of the supplement was an abandonment of the original information. These motions were overruled. The original information was sworn to by the relator before the county attorney, and, on presentation to the district judge, was by him directed to be filed. The relation and information, afterwards filed, were again sworn to by the relator before the clerk of the district court. On December 28, 1888, this cause was called in the lower court, and by the court set down for trial, January 15, 1889, over the objections and exceptions of the respondent. On January 16, 1889, the cause was called for trial, and respondent made his application for continuance, which the court overruled, and again set the case for trial, January 28, 1889, over the objections and exceptions of respondent to both actions of the court. On the 29th of January, 1889, the cause was again called for trial, and the court again set it down for trial, February 18, 1889. On February 18, 1889, the court again called the cause for trial, and again postponed and set the case for trial, March 11, 1889, the first day of next term. When called on March 11th, another application for continuance, based on the absence of witnesses, and denying the right of the court to take the case up out of its order, was filed and overruled. The application on account of the absence of witnesses was not such as the statute requires on second application, and in view of the character of the proceeding, and the evident intent of the statute that such cases shall be speedily tried, we cannot say that the court abused its discretion in placing the case in advance of the 550 civil cases preceding it on the docket. There was no application to postpone the case until some later day of the term, when the witnesses resident in the county might have been had by the exercise of that diligence and process which appellant might have used, and to have refused to try the case out of its order would probably have defeated the purpose of the proceeding, and have enabled appellant to hold the office without right for the full term.

It is urged that the affidavit of the relator could not be made before the county attorney, that it could not be made after the proceeding was instituted, and that it was insufficient in that it did not state that the facts alleged were positively true within the knowledge of the affiant. Such relations or informations should be sworn to. Although this is not made necessary by the terms of the statute, it has been the practice under similar statutes. If, as seems to be true, the purpose of the affidavit is to give to the judge, whose permission to file the information must be had, reasonable assurance that facts exist which make its filing necessary or proper, then it ought to be held, where such consent is given, that no further inquiry as to the service of his information could be made. The filing of the information establishes no facts on which the merit of the controversy rests; these must be established by evidence on final trial. The state's officer might file his information without relation, and in that case it would seem that his official statement, unsworn, would be sufficient to authorize a judge to direct an information to be filed. If the purpose of the affidavit was not that stated, then the second affidavit would not be subject to the objection to amended swearing, for it states no additional facts, and was made in view of the fact that there might be a question as to the authority of the county attorney to administer the oath in the first instance. The facts on which the information was based could not be known to the relator to be positively true, for, as the record manifests, it became necessary to open some of the ballot-boxes and count the votes in order to ascertain what the true result of the election was. The relator's affidavit was as direct and positive as in the nature of things he could conscientiously make it, and for the purpose for which the affidavit is required we are of opinion was sufficient.

The office was alleged to be of the value of $5,000, and there can be no question of the jurisdiction of the court below under the averments. State v. Owens, 63 Tex. 261; McAllen v. Rhodes, 65 Tex. 351. There was no plea that the averment was fraudulently made for the purpose of giving the court jurisdiction.

It is urged that the court erred in refusing to strike from the file what is termed the "supplemental information," because it was not made on relation, as was the original. It was the right of the state, at any time after the information was filed, with...