Davis v. State

• Decision Date: 17 December 1889
• Citation: 12 S.W. 957
• Parties: DAVIS <I>v.</I> STATE <I>ex rel.</I> WREN.
• Court: Texas Supreme Court

12 S.W. 957

DAVISv.

STATE ex rel. WREN.

Supreme Court of Texas.

December 17, 1889.

Appeal from district court, Hays county; H. TEICHMUELLER, Judge.

This was an information in the nature of a quo warranto, filed by the state upon the relation of J. A. Wren, against J. S. Davis, to oust the latter from the office of sheriff of Hays county. Judgment for plaintiff, and defendant appeals.

Brown & Beasley, Kone & Vaughn, and Walton, Hill & Walton, for appellant. Jas. M. Bethany, Dist. Atty., W. O. Hutchinson, O. T. Brown, and Denman & Franklin, for appellee.

GAINES, J.

This was an information in the nature of a quo warranto, filed upon the relation of J. A. Wren against J. S. Davis, to oust the latter from the office of sheriff of Hays county. At the general election held on the _____ day of November, 1888, the relator and defendant were candidates for that office. The ground of the action was that, although the commissioners' court had declared the result in favor of Davis, Wren had actually received a majority of the legal votes. The case having been tried without a jury, the court found that the relator and respondent had received an equal number of votes, and entered judgment declaring there was no election, and ousting the respondent from the office. The original information, following the sworn relation, alleged that certain persons, who were named, voted at certain specified boxes for the respondent; that their votes were counted for him; and that the votes were illegal. It was also alleged that eight legal votes for relator had been cast in a certain precinct, known as the "Buda Box," which were not counted for him by the managers of election. It was also averred that, by the official count, the respondent had a majority of only five votes. The information contains other allegations, which need not be set forth in this connection. The original information was filed January 28, 1889, and an amended information was filed March 7th. On the latter day, and, as may be presumed, before the filing of the amendment, the respondent answered, excepting generally and specially to the information "filed on the 28th day of January, 1889." The grounds of the special exception were: (1) That the allegations were "vague, uncertain, and indefinite, giving respondent no information of fact or facts against which he can make defense with certainty or knowledge, there being no box No. 2 in voting precinct No. 1 of said county;" (2) to so much of the information as sought a recovery of respondent for the fees of the office; and (3) that the facts alleged that San Marcos was an incorporated city, divided into wards, and that the commissioners had laid off the election precincts without reference to said wards, presented no grounds for setting aside the election as to any of the precincts. On the 8th of March other exceptions were filed: (1) "To all that part of plaintiff's petition which alleges that a true count of the votes cast will, when footed up at the several precincts, amount to the alleged quantities for relator and respondent, because the allegations are too general;" and (2) that the allegations were too general to warrant a recount of the votes. The general and special exceptions of respondent to the information were overruled.

The first assignment is that "the court erred in not sustaining the general demurrer to amended original petition." If the allegations were true, it is clear that the relator was duly elected sheriff, and that respondent was not elected, and had taken possession of the office. The information was therefore not subject to general demurrer. It is also complained that there was error in not sustaining the special exceptions. Waiving, for the present, the ruling as to the allegations which were intended to show the illegality of the election at the San Marcos boxes, we think the exceptions were properly overruled. The averments were as specific as ought, under the circumstances, to have been required. As to the alleged illegal votes, the names of the voters were given, the grounds of the alleged disqualification of each voter, and the precinct at which he voted, were stated. It is also alleged that there were mistakes in the count of the votes actually deposited, and the number of votes actually received by each of the parties at each of the boxes was distinctly averred. Greater particularity should not have been required. It was practicable for relator to know and prove, if it were a fact, that the officers had made a mistake in summing up the votes; but it was impossible for him to ascertain the name of each voter whose vote had not been counted. The substance of the allegation as to this matter was not that any particular vote or class of votes had been excluded, but simply that errors had been committed in the summing up of the votes. In reference to that part of the information which attempted to show that the election at the San Marcos boxes was illegal, it is sufficient to say that it appears from the record that, although the exceptions were overruled, the court upon the final hearing held that the votes there cast should be counted. This is not distinctly shown, but we think it is a conclusion to be deduced from the fact that, if those boxes had been rejected, the result, from the pleading and evidence, would have been to give relator a majority of the votes. We infer, too, that the court finally determined in favor of the legality of the election at those boxes, because the point is not urged by appellant under the assignment now under consideration. Such being the case, the failure to sustain the exception to this part of the information did not harm appellant.

It is also claimed that the exceptions should have been sustained because the allegations in the amended petition do not conform to the relation. This was not made a ground of special exception, and the assignment does not raise the question. It is not fundamental error, as is contended. In view of a new trial, and that an exception may hereafter be presented based upon that ground, we deem it best to pass upon it. There seems to be some conflict of authority in other jurisdictions upon the question whether the remedy by an information in the nature of a quo warranto is to be treated as a civil or criminal action. High, Extr. Rem. §§ 710, 711. But we think that, under our statute, it is to be treated as a civil suit. The act authorizing this proceeding provides that a citation shall issue "in like form as in civil suits," (section 3,) and that the respondent "shall be entitled to all the rights in the trial and investigation of the matters alleged against him, as in cases of trial of civil causes in this state." (Section 4.) Excluding certain special provisions, intended to secure a speedy disposition of the case in the trial court and upon appeal, there is nothing in the act to indicate that the rules of practice prescribed in the Revised Statutes should not apply, as far as is consistent with the nature of the proceeding. We incline to the opinion that an amendment to the information should not be permitted which sets up grounds for the relief sought essentially different from those alleged in the original information; but we see no reason to doubt that, under our liberal system of amendment, one should be allowed which contains allegations merely in enlargement of, or germane to, the grounds originally alleged. The rule in other states appears to be to allow the information in a quo warranto proceeding to be amended.

Before the trial the court appointed two persons to open the ballot-boxes from all the precincts, to recount the votes cast for sheriff, and to make a report of the number of votes for each of the parties at each precinct, and at the same time to ascertain and report for whom each of the persons whose votes were alleged to be illegal, either by relator or respondent, had voted. In relation to this matter the appellant has assigned three errors. First, it is claimed that the court erred in making the appointment, and directing a recount, and in not striking out the report on motion. The bill of exceptions, as it is called, in regard to the order, shows the following facts: Before the case was called for trial, and before the amended information was filed, counsel for relator moved the court to appoint persons to recount the ballots in the box known as the "Buda Box," which was granted. Counsel for relator then moved that they be also ordered to recount the votes in the Kyle box. Counsel for relator objected, on the ground that there were no averments in the answer to warrant the recount of that box. The latter motion was nevertheless granted. Counsel for relator then moved that the order be extended to all the boxes, to which counsel for respondent first objected, and then withdrew their objection. They did not except at the time the order was made. Having withdrawn their objection, they, in effect, waived their exception. The respondent cannot now complain of the ruling. An order of the court of this character must be excepted to when made, and the object of a bill of exceptions is to show the fact, if the exception be in fact taken. The bill shows that no exception was taken to this ruling. It is shown, however, that, after the report was made and filed, respondent moved to strike it from the files, and that an exception was taken to the refusal of the court to grant the motion. This seems to us an immaterial matter, because, when the report was offered in evidence, it was objected to on the same grounds which were urged in the motion to strike it out. The assignment under consideration seems to complain of the ruling of the court in appointing the committee to recount, as well as of the refusal to strike the report from the files. We have therefore discussed both questions. It may be doubted if it be sufficient to raise the latter.

Upon the trial the report, under oath, of the persons appointed...