Funderburk v. Schulz, 13014

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Citation: 293 S.W.2d 803
• Docket Number: No. 13014,13014
• Parties: E. C. FUNDERBURK et al., Appellants. v. Adrian SCHULZ et al., Appellees.
• Decision Date: 20 September 1956

Page 803

293 S.W.2d 803 E. C. FUNDERBURK et al., Appellants.
v.
Adrian SCHULZ et al., Appellees. No. 13014. Court of Civil Appeals of Texas, Galveston. Sept. 20, 1956.
Rehearing Denied Oct. 11, 1956.

Cutrer, Burks & Burrus, Lewis W. Cutrer and Thomas Burrus, Houston, for appellants.

Painter, Painter & Cook, J. H. Painter, Jr., Ernest A. Knipp, Houston, for appellees.

GANNON, Justice.

This is a contest of a bond election held in the Aldine Independent School District of Harris County on November 19, 1955, to decide upon the issuance of $3,500,000 of bonds. On November 21, 1955, the Board

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of Trustees of the District declared the results of the election to show that the bond issue carried. The appellants, E. C. Funderburk, and others, all residents of the District and qualified under the law as taxpaying property owners within the District, brought this contest seeking to set aside the declaration of the results of the election and to enjoin the District from issuing any bonds based thereon.

The contestants named as contestees the following: Aldine Independent School District, which was sued in its capacity as a public corporation and body politic, Adrian Schulz, O. K. Saathoff, Roy L. Anderson, Ralph T. Bellamy, J. E. Harrell, Joe Thompson, and M. F. McCracken, trustees of the District, and Burke Holman.

Burke Holman was sued in his official capacity as the county attorney of Harris County. But we regard his presence in the case as irrelevant to the questions hereinafter discussed. We rule he was not a proper party contestee in the present proceeding.

The individual defendants comprising the Board of Trustees of the District, though not made parties in their personal capacities, were sued individually in their official capacities as members of the Board. There were allegations that the contestee members of the Board of Trustees, each and all, ordered the contested election and that each and all of them officially declared the results thereof.

The contestees filed a plea in abatement, setting up want of jurisdiction in the trial court to entertain the contest. The gist of the plea is that though personal service of notice of intention to contest and of a statement of the grounds of such contest was had upon two members of the Board of Trustees, namely Joe Thompson and M. F. McCracken, neither the District itself, in its corporate capacity, which was claimed to be the sole proper and necessary contestee, nor the remaining members of the Board of Trustees, were personally served with such notice and statement of the grounds of the contest, and that contestants' attempted substituted service upon these parties was invalid and unauthorized because said parties so served with substituted service, each and all, could have been found within the county, as contemplated by statute within the statutory thirty-day period and personally served with process.

The trial court sustained the plea in abatement and dismissed the contest for want of jurisdiction. This appeal follows.

Appellants assign several points of error but, in the view we take of the case, it is necessary to consider only the second point, reading as follows:

'The trial court erred in sustaining the aforesaid plea and dismissing this cause for the reason that the undisputed evidence shows that two of the members of the Board of Education of the Aldine Independent School District, Joe Thompson and M. F. McCracken, were made party Contestees herein in their official capacities as members of said Board, and personal service of the notice and statement of election contest were had upon them in the time and manner required by law, and therefore, under Article 9.31 (Election Code), Vernon's Annotated Texas Statutes, such court had jurisdiction of this election contest.'

Appellees counter appellants' second point with the proposition that since the Board of Trustees of the Aldine Independent School District was 'the officer who declared the result of the election,' the Board as such was the only proper and necessary contestee and in the absence of proper service of notice of contest upon the Board as...