Hooker v. Foster

• Decision Date: 04 January 1928
• Docket Number: (No. 859-4947.)
• Citation: 1 S.W.2d 276
• Parties: HOOKER et al. v. FOSTER et al.
• Court: Texas Supreme Court

1 S.W.2d 276

HOOKER et al. v. FOSTER et al.

(No. 859-4947.)

Commission of Appeals of Texas, Section B.

January 4, 1928.

Certified Questions from Court of Civil Appeals of Sixth Supreme Judicial District.

Election contest by S. E. Hooker and others against Guy Foster and others. From a judgment dismissing the contest, contestants appealed to the Court of Civil Appeals, which certified questions to the Commission of Appeals. Questions answered.

T. P. Buffington, of Anderson, for appellants.

Haynes Shannon, of Navasota, for appellees.

SPEER, J.

The Court of Civil Appeals for the Sixth District has certified to the Supreme Court for answer the questions shown in the following certificate:

"In the above cause pending before this court we deem it advisable to certify to your honors the questions hereinafter specifically set forth. We are inclined to interpret article 3070, Revised Statutes, as providing for the ready joinder of defendant contestees in case only there is no county or district attorney of the county. In other words, that the purpose of the enactment was to prevent failure of right of contest through the lack of a defendant contestee and the service of notice in case there is no county or district attorney of the county timely available upon whom to serve notice of the contest during the period of 30 days from the declared election. Articles 3042, 3043, Rev. Statutes. The construction of the article given in the case of Hayter v. Baker, Mayor (Tex. Civ. App.) 293 S. W. 331, may be in conflict with this view unless contested elections solely upon matters peculiar to towns and cities were intended to be separated from county elections.

"(1) This is a contest of an election held in the Shiro independent school district of Grimes county on September 28, 1926, to determine whether or not an additional maintenance tax should be levied in that district. The contestants are resident taxpaying voters of the county and of the school district. The official result of the election was declared September 30, 1926, by the board of trustees of the Shiro independent school district, which was the returning board and which consisted of appellees, all named as contestees in this cause. Notice of the contest was duly and timely served on October 20, 1926, upon the contestees, and the present contest was timely filed in the district court on October 26, 1926. The notice so served was filed as a part of the pleading in the contest. On October 29, 1926, the contestees filed their reply to the grounds of contest, denying each item of the grounds of contest and specially demurring to the contestants' right to contest because notice had not been served on the county attorney of Grimes county. The county attorney was not made a party contestee, and no notice was served on him of the contest. There was a county attorney of Grimes county at the time, and he was available to be served with timely notice of this contest. On February 18, 1927, at a regular term of court, the contest coming on to be heard, the court sustained the plea of contestees that it was without jurisdiction to hear and determine the contest because the county attorney had not been made a party contestee and notice had not been served on him. The contest was accordingly ordered dismissed, and to this ruling of the court the contestants timely excepted and have appealed to have the ruling reviewed. The only question presented for our decision is that of which was the necessary party to be named as contestee and served with the required notice in suit to contest the election, the county attorney or the `officer who declared the result of said election.' Such parties were both timely available for the purpose. And it does not appear that the district was the independent school district of a town or city, if that fact be material to the application of the statute to the present action.

"(2) Question 1. Did the court err in dismissing the action because the county attorney was not named and served with notice as the contestee?

"Question 2. Did the court have jurisdiction to...