Griffith v. State

• Decision Date: 13 November 1919
• Docket Number: (No. 1017.)
• Citation: 216 S.W. 469
• Parties: GRIFFITH v. STATE ex rel. AINSWORTH.
• Court: Texas Court of Appeals

216 S.W. 469

GRIFFITH v. STATE ex rel. AINSWORTH.

(No. 1017.)

Court of Civil Appeals of Texas. El Paso.

November 13, 1919.

Appeal from District Court, Pecos County; Jas. Cornell, Judge.

Petition in quo warranto by the State of Texas, on the relation of L. W. Ainsworth, against H. B. Griffith. Judgment in favor of relator, and respondent appeals. Reversed and remanded.

See, also, 210 S. W. 293.

Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant.

Jackson & Isaacs, of El Paso, Wright & Harris, of San Angelo, and R. D. Blaydes and Howell Johnson, both of Ft. Stockton, for appellee.

HARPER, C. J.

This is a quo warranto instituted by the state of Texas, through its district attorney, R. D. Blaydes, upon the relation of L. W. Ainsworth, to oust the appellant, H. B. Griffith, from the county judge's office of the county of Upton.

The case was filed in said county and subsequently transferred to Pecos county by agreement of the parties, and in the latter county tried by the court without a jury, and from a judgment in favor of Ainsworth this appeal is prosecuted.

The first proposition is that the court should have sustained appellant's exceptions to the plaintiff's petition, because it showed upon its face that he (respondent) was the rightful holder of the office as holdover until the qualification of his successor; therefore could not be removed therefrom by proceeding in quo warranto.

The petition charged and the facts are:

That appellant was the elected and qualified county judge of Upton county for the term beginning November, 1916.

That relator, Ainsworth, was the Democratic nominee for the election of 1918, and that after the election the commissioner's court of the county met to canvass the returns, but upon inspection of the returns entered the following order:

"On this day came on to be canvassed the returns of a general election, and it appearing to the court that the said returns are insufficient as there has been no certificate made to said returns by the judges and clerks of said election, * * * it is therefore ordered by the court that said election be held for naught, and that the several county officers of said county, who are now duly qualified, remain in their respective offices until a successor be duly elected and qualified."

The action of quo warranto is the proper proceeding to try title to a county office, and will lie when the commissioners' court have failed or refused to canvass the returns. Dean v. State, 88 Tex. 290, 30 S. W. 1047, 31 S. W. 185; Buchanan v. Graham, 36 Tex. Cr. App. 468, 81 S. W. 1237.

Appellant is correct in his suggestion that he is entitled to hold the office until his successor is elected and qualified, and the the trial court so held and rendered judgment accordingly; but his further contention that the quo warranto will not lie until the successor has qualified is not well taken. Little v. State, 75 Tex. 616, 12 S. W. 965.

The court permitted a number of witnesses to testify that they voted for appellant for county judge at the election, to which appellant objected for the following reasons:

(1) Not the best evidence; (2) the ballots cast by the witnesses were the best evidence; (3) because the testimony of the witnesses does not show legal votes; (4) because the statute requires the result of the election to be shown (1) by returns properly certified to by the election officers, (2) by the legal ballots cast in the election and preserved as required by the statute, and in the absence of showing the loss or destruction of the ballot cast parol evidence of the individual voter is inadmissible to show how he voted. The action of the court in overruling the objections is assigned as error. In this connection the court permitted two papers, designated "tally sheet" and one called "election returns," to be introduced in evidence for appellee, to the introduction of which the following objections were made: (1) It is a mere hearsay statement. (2) Is secondary evidence. (3) The original ballot is the primary evidence. (4) Because there were no returns made out and properly certified to by the managers of the election as...