Baker v. Webster, 5556.

• Decision Date: 08 December 1938
• Docket Number: No. 5556.,5556.
• Citation: 123 S.W.2d 690
• Parties: BAKER et al. v. WEBSTER et al.
• Court: Texas Court of Appeals

123 S.W.2d 690

BAKER et al. v. WEBSTER et al.

No. 5556.

Court of Civil Appeals of Texas. Texarkana.

December 8, 1938.

Appeal from District Court, Bowie County; R. H. Harvey, Judge.

Election contest by W. H. Webster and others against L. C. Baker and others. From a judgment sustaining the contest, contestees appeal.

Affirmed.

O. B. Pirkey, of New Boston, for appellants.

Rodgers & Rodgers, of Texarkana, for appellees.

WILLIAMS, Justice.

This appeal involves the contest of an election which was held to determine if the Rock Creek Common School District and the New Boston Independent School District would be consolidated under the provisions of Article 2806, R.C.S.1925. The returns as canvassed by the Commissioners' Court disclosed fifty-seven votes for and fifty-six votes against consolidation were cast in the Rock Creek School District. The written statement of the grounds for contest is lengthy and is based upon ten specific grounds being directed to that part of the election held in the Rock Creek Common School District. On hearing, the trial court found "That such number of legal voters were by the officers or managers of the election denied the right to vote at said election, as had they voted or been permitted to vote, would have materially changed the result as to render such election void," and directed the proper officials to order and hold another election. W. H. Webster and others not necessary to mention here are named as contestants. Otto H. Atchley, County Judge of Bowie County, the respective members of the Commissioners' Court of said county, W. N. Harkness, County Attorney, and the respective members of the Board of School Trustees of the New Boston Independent School District, including L. C. Baker, its President, were named as contestees in the notice of intent to contest and in the statement of grounds for contest. It is unnecessary to discuss the evidence as contestees, appellants herein, concede "the judgment would find support in the evidence and the judgment should not be reversed for that ground." In their answer filed April 14, 1938, contestees urged a plea in abatement, general demurrer and denial, and further answering, challenged certain votes cast against consolidation. We presume all pleas were overruled as the cause proceeded to trial.

Appellants' first three propositions deal with a plea in abatement or general demurrer, and are embraced in the following proposition: "The court had no jurisdiction of this election contest because it nowhere appeared in the pleading of the contestants that the notice of contest and grounds were duly served upon the County Judge or County Attorney or some other person named for service under Article 3070, R.C.S. of 1925, within thirty days from the date on which returns of election were canvassed."

The pleadings filed by contestants consisted of the notice of intent to contest and statement of grounds. Each alleged, "That upon service of this notice and grounds upon the contestee herein of a copy, with return thereon, and of the statement of the grounds upon which this contest is made, this notice, contest...