Gonzalez v. Rodriguez
| Decision Date | 28 May 1952 |
| Docket Number | No. 12436,12436 |
| Citation | 250 S.W.2d 253 |
| Parties | GONZALEZ et al. v. RODRIGUEZ et al. |
| Court | Texas Court of Appeals |
Gerald Weatherly, Austin, Gordon Gibson, Laredo, for appellants.
Raymond, Algee, Alvarado, Kazen & Woods, Laredo, A. J. Vale, Rio Grande City, L. Hamilton Lowe, Austin, Magus F. Smith, McAllen, for appellees.
In Starr County, Texas, on March 29, 1952, an election was held to determine whether or not the Grulla Independent School District and the Rio Grande City Independent School District should be consolidated. The result of the election as shown by the canvass of the returns was in favor of consolidation by a majority of forty-four votes.
On the 2nd day of April, 1952, the defendants below, other than Ernesto Trevino, District Clerk, acting under the provisions of Rule 187, Texas Rules of Civil Procedure, filed with the defendant Ernesto Trevino as District Clerk of Starr County, notice of intention to apply for a commission to take depositions of some 67 named persons, all alleged qualified voters in the Grulla Independent School District, for the purpose of perpetuating their testimony in connection with a proposed contest of the above described election, and on April 3, 1952, caused the District Clerk to issue notice of such intention to take depositions. Defendants below filed their interrogatories and called upon plaintiffs below to file cross-interrogatories within a period of five days.
On April 8, 1952, the plaintiffs below filed a verified petition with the District Clerk of Starr County seeking a temporary injunction against the District Clerk from issuing the commission prayed for by defendants. The petition contained several separate grounds upon which the issuance of the injunctions was sought.
On April 7, 1952, the Commissioners' Court of Starr County canvassed the results of the election held on March 29, 1952, and declared the results of said election to be in favor of consolidating the two school districts. Immediately after the result of the election was declared, a contest was filed in the District Court of Starr County contesting the declared result of the election. No answer was filed by defendants denying the allegations of the petition for injunction. The trial judge first entered a temporary restraining order and after notice and a hearing on April 11, 1952, at which all parties were present, granted a temporary injunction ordering the District Clerk of Starr County not to issue the requested commission to take depositions. On the date ot his hearing the election contest had been filed in the same court and before the same judge as the application for a temporary injunction was filed. Under such circumstances the application to take depositions and the application for a temporary injunction became in effect consolidated with and a part of the election contest. There was at that time no longer any necessity for the taking of depositions to perpetuate testimony to be used in a contemplated suit, for there was in fact a pending suit. There was no longer any need for a separate suit for an injunction, but the application would now become ancillary to the election contest. In other words, the filing of the election contest had the effect of consolidating the application to take depositions and the petition for injunction with the election contest. The application to take depositions could be treated as though it had been made under Rule 186, T. R. C. P., rather than Rule 187, supra, and the petition for an injunction need no longer be treated as a separate suit.
The first question her presented is whether or not, under the Statutes and Rules of Civil Procedure, a prospective contestant in an election contest may preserve the testimony of witnesses by taking depositions under the provisions of Rule 187, Texas Rules of Civil Procedure. It is quite clear that an election contest is a special 'statutory proceeding' and is not an ordinary 'civil suit.' If an ordinary civil suit was involved there could be no question of the right of appellants herein under proper circumstances to take the deposition of witnesses, provided they comply with Rule 187, Texas Rules of Civil...
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