Allen v. Fisher

Decision Date17 October 1928
Docket Number(No. 1164-5139.)
Citation9 S.W.2d 731
PartiesALLEN v. FISHER et al.
CourtTexas Supreme Court

J. W. Sanders, Hoover & Hoover, E. J. Cussen, and E. J. Pickens, all of Canadian, for appellant.

S. D. Stennis, of Pampa, J. B. Clark, of Shamrock, Jas. E. Anderson, of Amarillo, Jas. H. Aynesworth, of Stinnett, James Spiller, of Wortham, J. Sid O'Keefe, of Panhandle, and Clifford Braly, of Dalhart, for appellee.

HARVEY, P. J.

On September 7, 1928, the plaintiff, Walter Allen, presented to the district judge of the Thirty-First judicial district his petition for injunction against W. D. Fisher, chairman of the Democratic executive committee for said judicial district, Clifford Braly, Jane Y. McCallum, secretary of state, and the various county clerks in said district In the petition the plaintiff seeks to restrain the certification of the name of Clifford Braly as the Democratic nominee for the office of district attorney for said district, and the placing of his name on the ballot at the general election to be held in November, 1928, as such nominee. The plaintiff also seeks a mandatory injunction requiring the certification of the plaintiff's name, as the Democratic nominee for said office, and the placing of his name on the ballot at the November election as such nominee. The prayer of the petition was for temporary injunction, which was prayed to be made perpetual upon final hearing. The district judge, in chambers, and basing his action exclusively upon the averments of the petition, denied the temporary injunction. From this action of the district judge an appeal was perfected to the Court of Civil Appeals for the Seventh Supreme Judicial District. The allegations of the plaintiff's said petition are, in substance, as follows: That Clifford Braly did not reside in the Thirty-First judicial district when said petition was filed, and had not, at any time before that time, resided in said district; that the fact of Braly's nonresidence was known to the voters at the time of the primary elections hereinafter mentioned; that the plaintiff is a qualified voter in said district; that, in the regular Democratic primary election held in July, 1928, the said Braly, the plaintiff Allen, and a third man were candidates for the Democratic nomination for the office of district attorney for said judicial district; that in said July primary election Braly received 4,334 votes, plaintiff received 2,983 votes, and the third man received 2,554 votes; that the name of Braly and that of the plaintiff were placed upon the official ballot in the August primary election, as candidates for said nomination; that in this election, Braly received a majority of the votes cast; that because of his not having resided in the Thirty-First district the said Braly is and was ineligible to the office of district attorney for that district and was disqualified to be nominated for that office.

The Court of Civil Appeals has certified certain questions to the Supreme Court. The certificate of the Court of Civil Appeals sets out at length the nature of the case and the allegations of the plaintiff's petition, and submits six certified questions. The first five of these questions relate to Braly's eligibility to the office of district attorney and to his right to be nominated for that office in the primaries. For reasons to appear hereafter, these first five questions are immaterial to a decision of this case; we refrain, therefore, from considering...

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34 cases
  • State ex rel. Eidson v. Edwards
    • United States
    • Texas Court of Criminal Appeals
    • June 27, 1990
    ...person other than the county or district attorney, unless such officer joins them." Bickham, 203 S.W.2d at 566, citing Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731 (1928) and State ex rel. Downs v. Harney, 164 S.W.2d 55 (Tex.Civ.App.--San Antonio 1942, writ ref'd. The Legislature, in creating......
  • American Liberty Pipe Line Co. v. Agey
    • United States
    • Texas Court of Appeals
    • December 16, 1942
    ...G. N., 89 Tex. 562, 35 S.W. 1067; Maud v. Terrell, 109 Tex. 97, 200 S.W. 375; Staples v. State, 112 Tex. 61, 245 S.W. 639; Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731; State v. Court of Civil Appeals, 123 Tex. 549, 75 S.W.2d In the Paris Ry. case the Supreme Court held (Judge Gould writing a......
  • Agey v. American Liberty Pipe Line Co.
    • United States
    • Texas Supreme Court
    • July 14, 1943
    ...R. Co., 89 Tex. 562, 35 S.W. 1067; Maud v. Terrell, 109 Tex. 97, 200 S.W. 375; Staples v. State, 112 Tex. 61, 245 S.W. 639; Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731; State v. Court of Civil Appeals, 123 Tex. 549, 75 S.W.2d 253. If the Legislature had intended by this Act to authorize an i......
  • In re Baker
    • United States
    • Texas Court of Appeals
    • February 25, 2010
    ...to confer standing to challenge eligibility of a candidate for election. See Jones, 978 S.W.2d at 651 (citing Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731, 732 (1928)). Baker filed an amended petition, in which he advised this Court that he is an “active Republican” in Harris County and a “fi......
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