Johnson v. Mooney

• Decision Date: 01 May 1922
• Docket Number: (No. 784.)
• Parties: JOHNSON v. MOONEY et al.
• Court: Texas Court of Appeals

241 S.W. 308

JOHNSON v. MOONEY et al.

(No. 784.)

Court of Civil Appeals of Texas. Beaumont.

May 1, 1922.

Appeal from District Court, Tyler County; D. F. Singleton, Judge.

Suit by J. A. Mooney and others against W. A. Johnson, to remove defendant from office as county judge. Judgment removing defendant from office, and he appeals. Reversed and dismissed.

Collins, Morris & Barnes, of Beaumont, for appellant.

J. A. Mooney and Tom F. Coleman, both of Woodville, for appellees.

O'QUINN, J.

This suit was brought by J. A. Mooney and others against W. A. Johnson, as county judge, and A. W. Williford and W. H. Boyd, as commissioners of Tyler county, Tex., for the purpose of removing them from office.

The original petition was presented to Hon. D. F. Singleton, judge of the district court of said Tyler county, Tex., in chambers, on May 23, 1921, who indorsed his order thereon, granting relators permission to file same, and ordering that citation issue to respondents, and also ordering that each of said respondents be suspended from office until the further orders of the court.

The petition was filed May 26, 1921, and respondents cited to appear. Pending trial of the issues, respondents Williford and Boyd resigned as commissioners, and the case proceeded to trial as to W. A. Johnson. The jury returned a verdict finding all the charges to be true, upon which judgment was rendered removing said respondent from office, from which judgment he has appealed.

The record in this case is voluminous. Appellant's brief alone contains 240 pages of typewritten matter, raising 72 different propositions, but, in view of our disposition of the case, we do not deem it necessary to set out at length the pleadings or the evidence, or to discuss the various propositions advanced by appellant.

This suit is brought under the provisions of chapter 2, title 98, Vernon's Sayles' Civil Statutes, art. 6042 of which reads as follows:

"The petition shall be addressed to the district judge of the court in which it is filed, and shall set forth in plain and intelligible words the cause or causes alleged as the grounds of removal, giving in each instance, with as much certainty as the nature of the case will admit of, the time and place of the occurrence of the alleged acts; the petition shall, in every instance, be sworn to at or before the filing of the same, by at least one of the parties filing the same, and the proceedings shall be conducted in the name of `the state of Texas,' upon the relation of the person filing the same."

The case will have to be reversed and dismissed because same is improperly brought. Article 6042, supra, provides that—

"the proceedings shall be conducted in the name of `the state of Texas,' upon the relation of the person filing the same."

This was not done. The original petition begins:

"Comes now J. A. Mooney, Marion Phillips, C. C. Hicks, Sam Gregory, Ed Hudiberg, Lee Hanks, and J. S. Jackson, all resident citizens of Tyler county, Texas, hereinafter called relators, and who complain of W. A. Johnson, county judge of Tyler county, A. W. Williford, county commissioner of precinct No. 1, Tyler county, and W. H. Boyd, county commissioner of precinct No. 2, Tyler county, and for cause of complaint respectfully relate. * * *"

This was indorsed:

"No. 3786. State of Texas. J. A. Mooney et al. v. W. A. Johnson et al. Dist. Court, Tyler County, Special Term, June, 1921. Petition for Removal. Filed 26th day of May, 1921. Hill C. Durham, District Clerk, Tyler County, Texas."

On August 13, 1921, relators filed their amended original petition "in lieu of and to take the place of" their original petition. It was styled and began:

"State of Texas. J. A. Mooney et al. v. W. A. Johnson et al. In District Court, Tyler County, Texas. August Term, A. D. 1921. Come now, J. A. Mooney, Marion Phillips, C. C. Hicks, Sam Gregory, Ed Hudiberg, Lee Hanks and J. S. Jackson, all resident citizens of Tyler county, Texas, and leave of the court having been obtained file this their first amended original petition in lieu and to take the place of the original petition heretofore filed herein, and complaining of W. A. Johnson, county judge of Tyler county, A. W. Williford, county commissioner of precinct No. 1 of Tyler county, and W. H. Boyd, commissioner of precinct No. 2, Tyler county, and for cause of complaint respectfully represent. * * *"

This was indorsed:

"No. 3786. The State of Texas ex rel. J. A. Mooney et al. v. W. A. Johnson. Relators' First Amended Original Petition. Filed 13th day of August, 1921. Hill C. Durham, District Clerk, Tyler County, Texas."

It will be observed that neither the original petition nor the amended petition discloses that the state of Texas is suing respondents by and through the named relators, but, to the contrary, shows that the suit is brought in the individual capacity of relators. While it is true that the indorsement on the pleadings mentioned joins the words "state of Texas" with the relators as plaintiff, still, even of the indorsement can be considered sufficient as such, it not appearing anywhere in the petitions, or either of them, that the state of Texas was complaining of respondents by and through the named relators, it would not meet the mandatory requirements of the law that the proceedings shall be conducted in the name of the state of Texas, for the indorsement on a petition is no portion of the petition itself, especially the charging part. This character of suit can only be brought by the state— individuals have no cause of action. Articles 6030 and 6042, R. S.; Engleman Land Co. v. Donna Irrigation District (Tex. Civ. App.) 209 S. W. 428. So, it not appearing that the petition was in behalf of the state of Texas, on the relation of the parties named, it states no cause of action.

Actions of this character do not stand on the same plane as ordinary suits, such as suits between individuals contesting property rights, but it is one in which society is interested. By law, the state is made the plaintiff. All of the requirements of the statute for such proceedings are intended for the benefit of society, rather than for the parties at interest. On the one hand they protect the public against unfaithful and incompetent public officials, and, on the other, they are intended to guard against bad faith and to prevent petty political and factional quarrels from interfering with the discharge of official duty, and to minimize harassment in public office.

Furthermore, in proceedings for the removal of officers, a proper petition, verified as required by law, is a prerequisite to the jurisdiction of the court. Removal proceedings cannot be initiated upon a petition which lacks legal verification. Article 6042, R. S. The original petition was sworn to by relator J. A. Mooney, as follows:

"The above and foregoing petition has been read by me, and the statements therein are true, except those made from information and belief, and those I verily believe to be true."

On August 13, 1921, relators filed their amended original petition "in lieu of and to take the place of" their original petition, which said amended petition was not sworn to, and upon which the case went to trial. That the original petition was not verified as required by law, we think can hardly be questioned. The said petition does not disclose what allegations are made on knowledge, or which on information, or which on belief. It is believed that it cannot be seriously contended that...