Ishmel v. Potts
| Decision Date | 23 March 1898 |
| Citation | 44 S.W. 615 |
| Parties | ISHMEL et al. v. POTTS, Co. Atty. |
| Court | Texas Court of Appeals |
Appeal from district court, Hopkins county; Howard Templeton, Judge.
Suit by S. S. Ishmel and others against W. R. Potts, county attorney, as a nominal defendant, contesting an election held to determine whether or not hogs, sheep, and goats should be permitted to run at large in a subdivision of Hopkins county. A demurrer to the petition was sustained, and the cause dismissed, and plaintiffs appeal. Affirmed.
W. R. Harris & Son, for appellants. John T. Hyde and Crosby & Dinsmore, for appellee.
This suit was instituted by S. S. Ishmel and others for the purpose of contesting an election held in a subdivision of Hopkins county to determine whether or not hogs, sheep, and goats should be permitted to run at large within such subdivision. Notice of the petition of contestants was served upon W. R. Potts, county attorney of said county, who is, by the style of the case, the nominal defendant. At the first term of the court, after the county attorney had been served with notice of the contest, no answer being filed to the plaintiffs' petition, judgment by default with a writ of inquiry was taken in favor of contestants, and the evidence heard, and judgment entered in their favor setting aside the election. During the same term, after the lapse of two days from the entry of such judgment, it was, upon the application made in the name of the county attorney by certain freeholders residing within the subdivision for which said election was held, set aside; after which, at the same term of the court, a general demurrer was sustained by the court to the contestants' petition, and final judgment entered dismissing their suit.
The assignments of error complain of the court's setting aside the judgment and sustaining the demurrer. If the petition was not good as against a general demurrer, it would not support a judgment. Therefore, if there was no error in the court's sustaining the demurrer and dismissing the suit, it would be unnecessary to consider the assignments which complain of the court's setting aside the judgment by default. But we will say in passing that it may be doubted whether a judgment by default can be taken in an action of this character, and that during the same term of the court it was within the sound discretion of the trial judge to set aside the judgment, though the motion therefor was not filed within two days after its entry....
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