Caperton v. Thorpe, 2855
| Decision Date | 09 February 1951 |
| Docket Number | No. 2855,2855 |
| Parties | CAPERTON et al. v. THORPE, County Attorney, et al. |
| Court | Texas Court of Appeals |
Pichinson, Davis & Hale, Snyder, for appellants.
Frank R. Day, Plainview, Sentell, Beene & Rosser Snyder, for appellees.
Contestants filed this suit challenging the conduct and result of an election held in Scurry County on April, 1, 1950, on the proposition of whether or not bonds should issue in the sum of $400,000.00 for the purpose of building and equipping a county hospital. At said election 837 voters favored the proposition and 603 were against it. Upon a trial judgment was entered sustaining said election. Contestants have appealed.
This suit was filed on May 9, 1950, and the answer of Contestees was filed on May 31, 1950. The Contestees excepted to Contestants' petition. The exceptions were not presented to nor acted upon by the court until the day of the trial.
Contestants, in their original petition, alleged that 370 people voting at said election were disqualified to vote therein. They attached to such petition Exhibit A containing the names of the alleged illegal voters. Contestants further alleged that there were numerous persons other than those named in Exhibit A who voted in said election who were not qualified to vote therein. Contestees, by their special exception No. 1, objected to the general allegation contained above on the ground that Contestants should be required to supply names of all voters to be challenged.
On the day of the trial, Contestants filed their first amended original petition and attached thereto an exhibit which contained the names of 679 persons whom they alleged voted in said election without being qualified to do so. Contestees objected to the filing of said first amended original petition on the ground that it came too late and the court sustained such objection and ordered such amended petition stricken from the record. Contestees then, for the first time, presented their special exceptions to the court that had theretofore been filed. The court sustained special exception No. 1 along with other exceptions which need not be mentioned here. Contestants immediately asked leave of the court to amend in order to meet said exception, and thereupon tendered to the court their first amended original answer for filing. The court permitted Contestants to file their amended petition but struck therefrom Exhibit A which contained the names of 679 persons alleged to have voted illegally at said election. To the action of the court in refusing to allow the filing of the amended petition containing 679 names of persons alleged to have voted illegally, Contestants duly excepted.
The case proceeded to trial and at the conclusion of the evidence it was determined by the court that Contestants failed to prove the disqualification of enough people voting in the election to change the result thereof. Contestants, by various points, contend the trial court erred in refusing to allow them to amend their petition in order to meet the exception sustained by the court.
We have concluded that Contestants' position is well taken. It will be observed that when Contestants filed their original petition they alleged that 370 persons had voted illegally and that there were other persons voting in said election whose names were unknown to the Contestants who were not entitled to vote therein.
Contestees excepted to that portion of the petition but until said exception was sustained by the court, Contestants could have, under their general allegations, offered proof that these additional persons had voted illegally at such election. However, when the trial court sustained the exception to such pleading, Contestants were cut off from making this proof.
The rule in Texas with reference to amendments after an exception has been sustained, is clearly stated in 33 Tex.Jur. page 596, as follows:
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