Ferguson v. Commissioners Court of Sabine County
| Decision Date | 31 March 1950 |
| Docket Number | No. 4609,4609 |
| Citation | 230 S.W.2d 303 |
| Parties | . Court of Civil Appeals of Texas, Beaumont |
| Court | Texas Court of Appeals |
Fisher & Tonahill, Jasper, for appellant.
Minton & Minton, Hemphill, and L. E. King, Hemphill, for appellee.
This proceeding, although involving a prayer for injunctive relief, is in fact an election contest; and the appeal before us was taken by the contestants from a judgment of the district court of Sabine County dismissing the contest pursuant to a plea by contestees, styled by them a plea in abatement, although in fact a plea to the jurisdiction. Since the document is so referred to by the parties, and is so identified in the record, we shall also refer to it as a plea in abatement. The record identifies contestants as plaintiffs and contestees as defendants, and the parties will be so styled in this opinion. The trial court's judgment was rendered upon a trial to the court without a jury; and at plaintiff's request, the trial court filed findings of fact and conclusions of law. A statement of facts has also been filed. None of the trial court's findings of fact have been attacked on this appeal.
The scope of the trial is not entirely clear to us. Defendants say that their plea and the petition of plaintiffs, as finally amended, were tried together, and that the plea was sustained at the conclusion of the hearing. Plaintiffs seem to say that only the plea was heard, and we note that the statement of facts refers only to a hearing on defendants' plea in abatement and is certified as showing the proof heard under said plea. Furthermore, we note that in the statement of facts appear objections by defendants to the admission of testimony except as relevant to the plea in abatement. However, the trial court's first conclusion of law is, in effect, that the relevant election statutes had been complied with, which indicates some belief on the part of the trial judge that the merits of plaintiffs' petition were before him, and there is some general language in the judgment under review which indicates that the cause came on for trial on its merits. We are inclined to believe, nevertheless, that the trial court actually heard nothing but the defendants' plea in abatement but we conclude that if the plea and the petition really were tried together, this was done by the consent of the parties.
At any rate, the merits of the contest are not before us, and the only question we have to decide is whether the trial court correctly sustained the defendants' plea in abatement.
The election contested was called and held under Article 6930, R.S.1925, to determine whether hogs, sheep and goats should be permitted to run at large within a subdivision of Sabine County. The trial court found that the election was held on November 24, 1948; that the returns of this election were canvassed by the Commissioners Court of Sabine County on December 13, 1948; and that this canvass showed 'a majority vote for said stock law.' We construe the finding as showing that a majority of votes had been cast in favor of prohibiting the running at large of hogs, sheep and goats within the particular subdivision of Sabine County.
On the 30th day after this canvass, towit, on January 12, 1949, plaintiffs filed a pleading in the district court of Sabine County complaining of the defendants, namely, the County Judge and the 4 Commissioners of said county. Plaintiffs alleged that the election was void for various reasons and prayed that defendants be restrained from enforcing the stock law and further that the election be adjudged void. This pleading was signed by plaintiffs' attorney; and was also sworn to be one of the plaintiffs. This pleading did not allege that the statutory notice of intention to contest and the grounds of contest had been served upon defendants.
On the same day, namely, January 12, 1949, the trial court granted an injunction which is styled a temporary injunction in the order granting same. Apparently, this order was made ex parte, upon the allegations of the petition. The order purports to restrain the defendants 'from-doing anything toward issuing a proclamation declaring the result of said stock law election-on November 24, 1948; and further restraining the defendants-from doing anything to make the stock law effective in the area in which said election was held; and further restraining the defendants-from doing any act necessary to the enforcement of stock law in said area in which said election was held'. The order directed the issuance of a writ and service of same, accompanied by a copy of the petition, upon the defendants. Issuance of the writ was conditioned upon plaintiffs filing an injunction bond in the sum of $300; and on the same date, to-wit, January 12, 1949, plaintiffs filed, and the district clerk approved, said bond.
Also on the same date, to-wit, January 12, 1949, which as stated was the 30th day after the election returns were canvassed, this injunction order, with a certified copy of the petition, was served upon 3 of the defendants, namely, the County Judge and 2 of the Commissioners. The document served is informal in some respects but it was sufficient to put defendants upon notice of the filing of the petition, of the contents of said petition, of the parties plaintiff and defendant, and of the granting and terms of the injunction order hereinabove mentioned. Service of this process was made by a deputy sheriff of Sabine County acting in the name of and in behalf of the sheriff of said county. The officer's return of service, which is affixed to the process, shows that service of said process was made by him upon the other 2 Commissioners on the day following, namely, January 13, which was the 31st day after the date of the canvass. However, the trial court has found (5th finding), and no attack has been made on the finding, that 'a certified copy of such petition (the reference is to the original petition) and exhibits attached thereto as well as a copy of the temporary injunction issued in this cause was served on each of the defendants or contestees in this cause on said 12th day of January, 1949, the 30th day (after apparently omitted) the returns were canvassed and the results declared by the said Commissioners Court'.
This process, with the officer's return of service thereof were filed among the papers of the court on January 13, 1949. Said return reads:
'Sheriff's Return
Came to hand on the 12 day of January, A.D., 1949 at 2 o'clock, P.M. and executed on the Defendants as shown below by delivering to the within named defendants, in person, a true copy of this writ, and plaintiffs' petition at the following times and places, to-wit:
On January 18, 1949, 5 days after process and return were filed, defendants filed an instrument styled by them a plea in abatement but alleging that the trial court had no jurisdiction of the cause for the reason that said cause was an election contest and; (1) Plaintiffs, the contestees, had not made the County Attorney of Sabine County a contestee; (2) 2 defects in the petition were alleged, one being as follows: 'The plaintiffs have failed to allege in their petition that any notice of their intention to contest the results of said election has ever been served upon the County Attorney of Sabine County, Texas'; (3) and that Plaintiffs had in fact failed to serve upon said County Attorney, the statutory notice of contest and grounds of contest within the statutory 30 days.
Subject to this plea, the defendants filed an answer.
On January 22, 1949, 4 days later, the aforesaid plea was amended and as amended alleged that the cause was an election contest and that the trial court had no jurisdiction of same, for the reasons: (1) The petition was defective in two respects, one being: 'The plaintiffs have failed to allege in their petition that any notice of their intention to contest the results of said election have ever been served upon the defendants herein'; and (2) the statutory notice of contest and the grounds of contest had not in fact been served upon the defendants within the statutorv 30 days.
On the same day that the amended plea was filed, to-wit, January 22, 1949, plaintiffs amended their petition in various respects, but praying as formerly that the election be adjudged void and for injunctive relief. This amended petition did not allege that the notice of intention to contest and the grounds of contest referred to in and required by Article 3042 had been served upon defendants.
The amended plea was addressed, in terms, to the pleading which plaintiffs had filed on January 12th; but the parties and the trial court have treated it as directed to the amended pleading of plaintiffs, and it was this amended plea which the trial court sustained. The amendment of said plea was not questioned by the plaintiffs.
The trial court made the following findings and conclusions concerning the hearing of said amended plea:
6.
'I find that such original petition filed by the plaintiffs or contestants failed to allege that within thirty days from the date of canvassing of the returns of said election and the...
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...of certain special exceptions, and, as such, sufficiently raised the points intended by the appellees. Ferguson v. Commissioners' Court of Sabine County, Tex.Civ.App., 230 S.W.2d 303; Clark v. City of Dallas, Tex.Civ.App., 228 S.W.2d 946. The order sustaining the exceptions recited that the......
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