Barker v. Wilson

• Decision Date: 08 November 1916
• Docket Number: (No. 5818.)
• Citation: 189 S.W. 748
• Parties: BARKER et al. v. WILSON.
• Court: Texas Court of Appeals

189 S.W. 748

BARKER et al. v. WILSON.

(No. 5818.)

Court of Civil Appeals of Texas. Austin.

November 8, 1916.

Appeal from District Court, San Saba County; N. T. Stubbs, Judge.

Election contest by L. W. Barker and others against A. B. Wilson. From an order of a judge, contestants appeal. Appeal dismissed.

Walker & Burleson, of San Saba, for appellants.

KEY, C. J.

In May of the current year an election was held in school district No. 22 of San Saba county, to determine whether or not there should be issued bonds in the sum of $10,000, for the purpose of building a schoolhouse in that district. The election resulted in favor of the proposition, and L. W. Barker and others filed a petition in the district court of San Saba county for the purpose of contesting that election. As required by statute, A. B. Wilson, the county attorney, was made contestee; and, without formally making them parties, the contestants prayed for an injunction against the county judge and the other members of the commissioners' court of San Saba county, to prevent them from declaring the result of the election. Wilson, the contestee, filed an answer which included certain exceptions to the petition.

The record shows that the Hon. N. T. Stubbs, judge of the Thirty-Third judicial district, which includes San Saba county, tried the case in vacation on the 29th day of July 1916; that he sustained one of the exceptions; held that the district court of San Saba county had no jurisdiction, because of the fact that proper notice of the contest had not been served upon the contestee within 30 days after the election was held, and for that reason refused to grant the injunction; and dismissed the case.

The contestants have brought the case to this court upon an appeal bond payable to A. B. Wilson, the contestee, alone. We have reached the conclusion that this court is without jurisdiction, and the appeal has been dismissed for the following reasons:

1. The appeal is not from a judgment rendered by any court, but from an order made in vacation by a district judge. With certain exceptions, specified by statute, there can be no appeal except from a final judgment rendered by a court. The record shows that the order from which this appeal is prosecuted was made by a judge in vacation, and not by any court; and therefore, unless it comes within one of the exceptions, contestants have no right of appeal, even though the order may be absolutely void.

2. While the statute authorizes an...