Harrison v. Chesshir, 6802

Decision Date29 September 1958
Docket NumberNo. 6802,6802
PartiesMrs. Anna Bell (Lay) HARRISON et vir, Appellants, v. Herbert CHESSHIR et al., Appellees.
CourtTexas Court of Appeals

Calloway Huffaker and Harold Green, Tahoka, for appellants.

Morgan L. Copeland, Hackney & Crawford, Brownfield, for appellees.

NORTHCUTT, Justice.

We will present this matter as Mrs. Harrison being the sole appellant, since she is the real interested party.

The appellant, Anna Bell (Lay) Harrison, was duly elected as the commissioner of Precinct No. 3, Terry County, Texas, at the 1956 elections, and she thereafter duly and properly qualified for such office, and proceeded to act as such commissioner. On May 11, 1957, the appellant married E. W. Harrison. At the time and prior to said marriage she was a resident of her Precinct, and no question is involved in this case as to her residence in said Precinct, or her right to hold her office as commissioner of said Precinct prior to the date of her said marriage.

On August 5, 1957, the appellee, Herbert Chesshir, who is the county judge of Terry County, summarily declared that the office of commissioner of Precinct No. 3 was vacated, and thereafter Eulice H. Farrar was appointed to said office, and thereafter qualified by taking the oath and giving bond and received his commission to said office. Thereafter on August 19, 1957, the appellees, who comprise the Commissioners Court of Terry County, Texas, including the said Eulice H. Farrar, filed an application for an injunction against the appellant to enjoin her from in any manner acting, or attempting to act, as commissioner of Precinct No. 3 of Terry County, Texas. The appellant duly and timely filed an answer to said petition, and, also, filed a cross action seeking to obtain an injunction on her behalf, and, also, to have it declared that she was in fact the commissioner of Precinct No. 3.

On August 28th the trial court heard said application, and on September 9th entered a judgment granting the temporary injunction sought by the appellees herein; however, no appeal was taken from said judgment, but the case was set down for trial and proceeded to trial on the 12th day of November, 1957 before a jury. The cause was submitted to the jury upon three special issues and based upon such verdict the trial court entered judgment herein, appealed from on the 29th day of November, 1957, said judgment being in the form of an injunction enjoining the appellant from in any manner attempting to act as commissioner of said Precinct No. 3, and, also, denied the relief sought by the appellant under her answer and cross petition.

In due and proper time the appellant presented her Motion for New Trial, the same was overruled, proper notice and appeal bond was given and filed, and this cause is now before this Court for consideration.

By appellants' first six points of error it is contended that there was no evidence and also insufficient evidence to support findings of the jury as to the three issues submitted by the court. By the first issue the court inquired as to whether at any time between May 11, 1957, and August 5, 1957, appellant failed to reside in Precinct 3, Terry County, Texas. By the second issue the court inquired as to whether at the time appellant failed to reside in Precinct 3, Terry County, Texas, if she did, she then had the intention to then and there reside permanently in Lubbock County, Texas. Then by the third issue the court asked whether at the time appellant failed to reside in Precinct 3, Terry County, Texas, if she did, she then had the intention to then and there abandon the house located in Precinct 3, Terry County, Texas, as her place in which to reside, and all three issues were answered in the affirmative. If appellant moved out of Terry County and resided in Lubbock County she naturally forfeited her right to hold the office of County Commissioner of Precinct 3, Terry County, Texas, under the terms of Section 14 of Article 16 of the Texas Constitution, Vernon's Ann.St.

It is elementary law that if there be sufficient evidence of probative force to support the findings of the jury the parties to the suit and the appellate courts are bound thereby. In determining the sufficiency of the evidence to support the jury's findings we must give credence only to the evidence and circumstances favorable to the findings and disregard all evidence to the contrary. Truelove v. Truelove, Tex.Civ.App., 266 S.W.2d 491 (writ refused) and the cases there cited.

For the purpose of this record we quote some of the testimony which we think is sufficient to sustain the jury's findings. On June 15, 1957, after having married on May 11, 1957, Mr. and Mrs. Harrison executed and had filed a homestead designation and also a deed of trust in which they stated they occupied and resided in their home in Idalou, Lubbock County, Texas, ever since their marriage. Judge Herbert Chesshir testified that appellant prior to her marriage would be in the Commissioners Court office once to three or four times a week other than during regular and special court meeting days but after June 1, 1957, he never saw her around except on regular meeting dates of the court. The County Judge, and also the County Commissioners, testified that on these regular meetings of the court the appellant often spoke of driving down from Idalou, Texas, and how far she had to drive to the Commissioners Court meetings. Bryan Hulse, County Commissioner in Hockley County, testified appellant told him she was living in Idalou temporarily but they would move to their new home near Petersburg when it was completed. Gus Scoggins testified he had a conversation with appellant in Idalou when she stated: 'This is not much of a place to live. We are camped here for the time being. We are planning to build a new home.' Walter McKee stated that in the presence of Bud Britton and A. Morris appellant told him she was going to get married to Ed Harrison and move to Petersburg right after she got married. Mr. Britton testified to the same thing. Carl Stephenson testified that on May 12, he had a conversation with appellant when she told him she was going to move to Petersburg, going to live up there and be Commissioner of Terry County if the Commissioners would keep their mouths shut. None of this testimony was denied. There is other testimony to the same effect. It is to be noticed that Mrs. Harrison did not take the witness stand and personally refute this testimony. We overrule appellants' first six points of error.

By appellants' points of error seven and eight she contends the court erred in refusing her, after her admissions, the right to first examine the jury and to open and close the evidence and arguments to the jury. All the appellant admitted was the fact that the County Judge of Terry County, declared the office of Commissioner for Precinct 3 vacant and by appointment, valid on its face, appointed the cross-defendant Eulice H. Farrar as Commissioner for said Precinct 3, and that thereafter, pursuant to the laws of the State of Texas, there was issued to Farrar the commission to said office under which commission he was then acting as Commissioner of said Precinct which commission was valid on its face. It is to be noticed, however, that appellant attempted to still act as County Commissioner. In the following paragraph of said admission, however, she denied that said office was vacated and that she had at no time prior thereto vacated said office. We are of the opinion...

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10 cases
  • Martinez v. Bynum
    • United States
    • U.S. Supreme Court
    • May 2, 1983
    ...Tex. 407, 412-417, 241 S.W.2d 136, 139-141 (1951); Whitney v. State, 472 S.W.2d 524, 525-526 (Tex.Cr.App.1971); Harrison v. Chesshir, 316 S.W.2d 909, 915 (Tex.Civ.App.1958), rev'd on other grounds, 159 Tex. 359, 320 S.W.2d 814 (1959) (per curiam); Prince v. Inman, 280 S.W.2d 779, 782 (Tex.C......
  • Lipscomb v. Randall
    • United States
    • Texas Court of Appeals
    • January 7, 1999
    ...Christi 1997, no writ) (automatic forfeiture based on violation of absenteeism requirement); Harrison v. Chesshir, 316 S.W.2d 909, 914 (Tex.Civ.App.--Amarillo 1958) (automatic forfeiture when officeholder moved out of county), rev'd on other grounds, 159 Tex. 359, 320 S.W.2d 814 Randall was......
  • Carrington v. Rash
    • United States
    • U.S. Supreme Court
    • March 1, 1965
    ...and the courts reviewing their actions have required a 'freely exercised intention' of remaining within the State, Harrison v. Chesshir, Tex.Civ.App., 316 S.W.2d 909, 915. The declarations of voters concerning their intent to reside in the State and in a particular county is often not concl......
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    • United States
    • Texas Court of Appeals
    • November 25, 1997
    ...disqualifying event itself, not the reasons therefore, are relevant to whether the provision applies. See Harrison v. Chesshir, 316 S.W.2d 909, 914 (Tex.Civ.App.--Amarillo 1958), rev'd on other grounds, 159 Tex. 359, 320 S.W.2d 814 (1959); Prince v. Inman, 280 S.W.2d 779, 781 (Tex.Civ.App.-......
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