Iles v. Walker, 7480.

• Decision Date: 26 October 1938
• Docket Number: No. 7480.,7480.
• Citation: 120 S.W.2d 418
• Parties: ILES v. WALKER, Chief Justice, et al.
• Court: Texas Supreme Court

120 S.W.2d 418

ILES v. WALKER, Chief Justice, et al.

No. 7480.

Supreme Court of Texas.

October 26, 1938.

Original proceeding for writ of mandamus by W. E. Iles against Hon. Daniel Walker, Chief Justice of the Court of Civil Appeals for the Ninth Judicial District, and others.

Writ granted in accordance with opinion.

Adams & McAlister, of Nacogdoches, for relator.

Sanders & McLeroy, of Center, for respondents.

CRITZ, Justice.

This is an original mandamus proceeding filed in this Court by W. E. Iles as relator against Honorable Daniel Walker, Chief Justice of the Court of Civil Appeals at Beaumont, et al. as respondents. The proceeding grows out of the following undisputed facts:

1. W. E. Iles, relator here, and W. B. Hargis, one of the respondents here, were opposing candidates for the Democratic nomination for the office of County Superintendent of Public Instruction of Sabine County, Texas, in the Democratic primary election held in such county on July 23, 1938. As shown on the face of the election returns of such election relator received a majority of one vote, and was declared the Democratic nominee for the above-mentioned office by the Democratic Executive Committee of Sabine County, Texas. Also, such Committee issued to relator a certificate of nomination.

2. On the 11th day of August, 1938, respondent Hargis filed a contest of Iles' nomination in the District Court of Sabine County, Texas. In this proceeding Hargis was a contestant and Iles the contestee. It appears that Honorable F. P. Adams, Judge of the District Court of Sabine County, Texas, called a special term of such court to be begun on August 29, 1938, such term being called for the purpose of trying the above-mentioned primary election contest. It appears also that Honorable F. P. Adams noted his inability to try such contest, and Honorable W. B. Browder, Judge of the Ninth Judicial District, was duly named to hear and determine such cause.

3. On August 22, 1938, citation and notice of contest was duly issued out of the District Court of Sabine County, Texas, commanding W. E. Iles, relator, to appear before such court on August 29, 1938, to answer the petition of the contestant Hargis. This citation or notice of contest was never served upon Iles personally, but on the 22d day of August the Sheriff of Sabine County, Texas, purported to serve the same by delivering a copy thereof to Elwin Iles, the sixteen-year-old son of W. E. Iles, at the usual place of abode of the said W. E. Iles. The facts with reference to such attempted service affirmatively appear upon the face of the final judgment entered in the contest proceedings. We here quote as follows from such judgment:

"The Court further finds that because of the inability of plaintiff, contestant, W. B. Hargis and of the Sheriff of Sabine County, to serve and/or to find said defendant within Sabine County so as to be served with such process and notice service was had upon such defendant with provision of Article 3044 Revised Civil Statutes of this state due and proper service was had upon said defendant W. E. Iles, by the service of notice of the intention of contest of said election and the grounds therefor and the specifications thereof and of citation, all in writing upon Elwin Iles, the son of the defendant, at the usual place of abode of the defendant at Pineland, in Sabine County, Texas, the said Elwin Iles, said son of defendant W. E. Iles being at the time over the age of sixteen years, which is fully shown by the return of the Sheriff of Sabine County, Texas."

4. On the 29th day of August, 1938, the contest above mentioned was called for trial in the District Court of Sabine County, Texas, and after hearing certain matters with reference to inability to secure personal service on Iles, the trial of such contest was postponed until September 2, 1938, upon which last mentioned date the contest was again called for trial. The contestee Iles never made any appearance in the district court proceedings, never participated in the trial therein, and never waived statutory service in any way.

5. On September 2, 1938, the trial of the contest was had in the district court, evidence heard, and judgment entered vacating the certificate of nomination issued to Iles, and declaring Hargis the Democratic nominee for the office in question. The judgment contains such other orders as were necessary to put same into effect, and to cause Hargis' name to be posted and printed on the official ballot for the November, 1938, election as the Democratic nominee for the office above mentioned.

6. On September 5, 1938, Iles filed an appeal bond for the purpose of appealing the district court judgment above mentioned. Also, on September 15, 1938, Iles filed the record of appeal, including the transcript and statement of facts, in the Court of Civil Appeals at Beaumont. Also, on September 22, 1938, Iles filed application for writ of error to the Court of Civil Appeals, and on the same day he had citation in error issued and served, and filed writ of error bond, secured a transcript of the district court proceedings, and filed the same in the Court of Civil Appeals in an attempt to perfect an appeal from the district court judgment by writ of error, as well as by direct appeal.

7. The Court of Civil Appeals set both the direct appeal and the appeal by writ of error for hearing on October 6, 1938, at which time both cases were submitted and argued. On October 10, 1938, the Court of Civil Appeals rendered its opinion and judgment, dismissing both the direct appeal and the appeal by writ of error. 120 S.W.2d 1091. As reasons for its rulings and judgment the Court of Civil Appeals held:

(a) That Iles' direct appeal should be dismissed because no notice of appeal was given in the district court as required by Article 2253, Vernon's Ann.Civ.St. art. 2253.

(b) That our statutes do not contemplate that election contests of this character should be appealed by writ of error.

The above judgment of the Court of Civil Appeals has become final, and the effect of same, as disclosed by the opinion rendered, is to adjudge and declare that the judgment in the district court stands unappealed. In this connection, the Court of Civil Appeals did not pass on the validity of such judgment, but simply held that Iles had not succeeded in appealing same either by direct appeal or by writ of error. We are not here concerned with the correctness of such ruling.

8. On October 6, 1938, Iles filed a petition in the District Court of Sabine County, Texas, asking that court to enjoin any enforcement of the original judgment entered in the contest proceeding. This relief was sought on the alleged ground that such original judgment was void for lack of service on contestee. This injunction was refused by the district court, and Iles appealed to the Court of Civil Appeals. We understand that such appeal has been dismissed by the Court of Civil Appeals.

9. After the happening of the above events relator Iles, with permission of this Court, filed this proceeding directly in this Court against the Justices of the Court of Civil Appeals at Beaumont, against Judges F. P. Adams and W. B. Browder, against J. O. Wright, County Clerk of Sabine County, Texas, and against W. B. Hargis, the original contestant. We shall not attempt to set out all the relief prayed for. It is sufficient to say that this is an original mandamus proceeding, and we regard the prayer contained in the petition as sufficient to justify the judgment we have already entered.

Opinion.

Before proceeding further we deem it expedient to quote certain statutes which we shall later discuss and construe. Such statutes are as follows:

"Art. 3042. Notice of contest. Any person intending to contest the election of any one holding a certificate of election for any office mentioned in this law, shall, within thirty days after the return day of election, give him a notice thereof in writing and deliver to him, his agent or attorney, a written statement of the ground on which such contestant relies to sustain such contest. By the `return day' is meant the day on which the votes cast in said election are counted and the official result thereof declared." Vernon's Ann.Civ.St. art. 3042.

"Art. 3043. Reply to notice of contest. The person holding such certificate shall, within ten days after receiving such notice and statement, deliver, or cause to be delivered, to said contestant, his agent or attorney, a reply thereto in writing." Vernon's Ann.Civ.St. art. 3043.

"Art. 3044. Service of notice. The notice, statement and reply required by the two preceding articles may and shall be served by any person competent to testify, and shall be served by delivering the same to the party for whom they are intended in person, if he can be found in the county, if not found, then upon the agent or attorney of such person, or by leaving the same with some person over the age of sixteen years at the usual place of abode or business of such person." Vernon's Ann.Civ.St. art. 3044.

"Art. 3152. By district court. In State, District, County, Precinct, or Municipal Offices, the certificate of nomination issued by the President or Chairman of the Nominating Convention or Chairman of the County Executive Committee, shall be subject to review, upon allegations of fraud or illegality, by the District Court of the county in which the contestee resides, or the Judge of said Court in vacation; provided, that such allegations are filed in said Court within ten (10) days after the issuance of said certificate; and when said allegations are so filed, or the appeal from the decision of the executive committee is perfected, the Judge of the District Court shall set same down for hearing, either in term time or vacation, at the earliest practical time; and a copy of said grounds of contest, together with the notice of the date set for hearing, shall be prepared and issued by the District Clerk and be...