Davis v. Hemphill

Decision Date13 May 1922
Docket Number(No. 10204.)
Citation243 S.W. 691
PartiesDAVIS et al. v. HEMPHILL et al.
CourtTexas Court of Appeals

Appeal from District Court, Montague County; C. R. Pearman, Judge.

Suit by G. C. Davis and others against G. W. Hemphill and others. From a judgment dismissing a temporary injunction, plaintiffs appeal. Affirmed.

Donald & Donald, of Bowie, for appellants.

W. O. Davis, of Gainesville, and T. H. Yarbrough, of St. Jo, for appellees.

BUCK, J.

G. C. Davis, D. E. Millikin, S. T. Payne, and M. A. Hemphill for themselves and 174 other qualified taxpaying voters of the St. Jo independent school district, Montague county, asked for an injunction against the trustees of the school district, restraining them from taking any action whatever in reference to awarding any contract for the erection of a school building upon any site other than the present one, until the question of the selection of the site had been submitted to an election of the voters of the independent school district, and a majority of those voting had decided in favor of abandoning the present school site. They alleged that said board of trustees had refused to submit the question to the people of selecting the proposed site for the new school building, and that complainants had appealed from such action to the county superintendent of Montague county, who found in favor of the action of the board in refusing such petition; that thereafter an appeal was taken by the petitioners to the county board of school trustees, who considered the appeal and rendered the following decision:

"Montague county school board in session at a called meeting: Subject-matter: Change of location of public school site St. Jo, Texas, public school.

"We, the Montague county school board, find and render our decision after hearing the law and evidence in the case as follows, to wit:

"1. We find and believe that the St. Jo school trustees were within their powers as far as establishing a site for the school was concerned.

"2. We further find that they have used bad business judgment and discretion in not referring the contemplated change to the taxpayers and patrons of said school in the form of an election and further, we recommend that this be done.

"3. We further believe that it is advisable that they rescind their actions in this matter and that they give the above mentioned patrons a chance to render their decision on so vital a matter, in the form of an election.

                                              "C. G. Garrett
                                              "L. E. Petty
                                              "E. A. Fincher
                                              "John Kirby."
                

The petitioners alleged that the judgment and decision of the county board of school trustees was in favor of their contention that the new site should not be purchased or acquired, and that the trustees of the independent school district, hereinafter called trustees, did not appeal therefrom; that they have refused to correct and rescind the order passed by them looking to the acquisition of a new school site, and have accepted a new and different school site, and are now advertising for bids for the erection of a three-story school building to be erected upon the new site selected. They further alleged that the petitioners are owners of the property situated within the school district, and, if the trustees are permitted to disregard the order made and entered by the county board of school trustees, hereinafter called county board, and are permitted to enter into any contract binding upon the district contrary to the intents and purposes of the order made by the county board, that petitioners will sustain damages.

The defendants answered by a plea to the jurisdiction of the district court, by a general demurrer, and by a plea that the order of the county board did not overrule the action of the plaintiff trustees, and by a general denial, and specially pleaded that the present school building has been condemned and is unsafe for use as a school building, and is located on a bleak and desolate hill in a part of the town where there are but few residences, and no business houses and no growth; that no water can be had upon the lot suitable for drinking, and the location is so high that it cannot be reached by the town's water system; that 85 per cent. of the school population resides on the west or south side of the town and the future growth and extension of the town of St. Jo will be on that side; that the present school building is located across the railroad from a large majority of the scholastic population, and that it is dangerous for the children going and coming from school to cross the tracks of said railroad. Other allegations are contained in the answer tending to show the good faith of the board in voting and determining to change the school site.

The court first granted a temporary injunction, but upon a motion to dissolve the injunction was dissolved and set aside. From this judgment the plaintiffs below have appealed.

It is admitted by the parties to this appeal that St. Jo has 322 children within the scholastic age. It is urged that under Acts 29th Leg. 1905, c. 124, p. 263, and Acts 34th Leg. 1915, c. 36, p. 68 (Vernon's Ann. Civ. St. Supp. 1918, art. 2749a et seq.), that all appeals in school matters shall be taken from the board of trustees to the county...

To continue reading

Request your trial
18 cases
  • Jampole v. Touchy
    • United States
    • Texas Supreme Court
    • 27 Junio 1984
    ...W.E.R., 669 S.W.2d 716 (Tex.1984) (per curiam); Kinney v. Shugart, 234 S.W.2d 451 (Tex.Civ.App.--Eastland 1950, writ ref'd); Cf. Davis v. Hemphill, 243 S.W. 691 (Tex.Civ.App.--Fort Worth 1922, no writ) (opinion or reasons given by judge constitute no part of judgment); accord Chandler v. Re......
  • Denton Cnty. Elec. Coop., Inc. v. Hackett
    • United States
    • Texas Court of Appeals
    • 12 Julio 2012
    ...that now matches the subsequently filed pleading, only to have to review the same substantive legal issues later. See, e.g., Davis v. Hemphill, 243 S.W. 691, 694 (Tex.Civ.App.-Fort Worth 1922, no writ) (op. on reh'g) (stating that it would be a useless act on the court's part to reverse the......
  • Amarillo Civil Service Commission v. Vitatoe
    • United States
    • Texas Court of Appeals
    • 6 Octubre 1977
    ...request. Massey v. Farnsworth, 353 S.W.2d 262 (Tex.Civ.App.--Houston 1961), rev'd on other grounds, 365 S.W.2d 1 (Tex.1963); and Davis v. Hemphill, 243 S.W. 691 (Tex.Civ.App.--Fort Worth 1922, no writ). Therefore, the Commission's order of May 12, 1976 was a final Article VI, Sec. 8 of the ......
  • Denton Cnty. Elec. Coop. v. Hackett
    • United States
    • Texas Court of Appeals
    • 10 Mayo 2012
    ...that now matches the subsequently filed pleading, only to have to review the same substantive legal issues later. See, e.g., Davis v. Hemphill, 243 S.W. 691, 694 (Tex. Civ. App.—Fort Worth 1922, no writ) (op. on reh'g) (stating that it would be a useless act on the court's part to reverse t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT