Hannah v. Shepherd

• Decision Date: 08 February 1894
• Citation: 25 S.W. 137
• Parties: HANNAH v. SHEPHERD.
• Court: Texas Court of Appeals

25 S.W. 137

HANNAH v. SHEPHERD.

Court of Civil Appeals of Texas.

February 8, 1894.

Appeal from Madison county court; J. C. Morris, Judge.

Action by W. C. Hannah against A. L. Shepherd for possession of certain sheep. Judgment for defendant. Plaintiff appeals. Affirmed.

Dean, Brownlee & Dean, for appellant.

GARRETT, C. J.

Appellant brought this suit to recover of the appellee a number of sheep, alleged to have been converted by the latter. The defendant justified the seizure, pleading that the sheep were taken up by him under the provisions of the law to prevent sheep and other animals from running at large, which had been adopted in the subdivision of Madison county in which the parties resided. Plaintiff replied, alleging that the law had never been legally adopted.

There was no error in sustaining the demurrer of defendant to the paragraphs of the petition pointed out by it. Only one manager for each voting place was required to be appointed by the county judge, and it was his duty to appoint two judges of the election. The pleading does not show that this was not done.

We do not think that mere irregularities in conducting the election would render it void. The seventh paragraph, which sets out the names of illegal voters who voted at the election, sufficient in number to have changed the result, does not aver that a majority of the legal votes cast at the election would have been against the adoption of the law.

We are of the opinion that the court did not err in holding that the petition for the election was signed by 20 freeholders. The signers who had not paid for their land were equitable freeholders, and the one who was not in possession of the land he had contracted for had the right to possession. The county judge was charged by the statute with the counting of the votes and declaring the result, and it required no order of the commissioners' court declaring the result to give effect to the law. Defendant put in evidence a proper petition for the election, and the proclamation of the county judge declaring the result; and plaintiff admitted in his supplemental petition that the election had been ordered by the commissioners' court. This was, at least prima facie, sufficient evidence that the law had been adopted.

Defendant only obtained judgment for the fees for impounding the sheep, and hence no question can arise as to validity of his claim for damages. The judgment of the court below will be affirmed.