Kincannon v. Mills

• Decision Date: 25 June 1925
• Docket Number: (No. 244.)
• Citation: 275 S.W. 1083
• Parties: KINCANNON et al. v. MILLS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

275 S.W. 1083

KINCANNON et al. v. MILLS et al.^*

(No. 244.)

Court of Civil Appeals of Texas. Waco.

June 25, 1925.

Rehearing Denied October 8, 1925.

Appeal from District Court, McLennan County; James P. Alexander, Judge.

Action by Joel Kincannon and others against Arthur Mills and others. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Spell, Naman & Penland, of Waco, for appellants.

S. E. Stratton, of Waco, for appellees.

Statement.

STANFORD, J.

Joel Kincannon and three other citizens and residents of Independent School District No. 8 of McLennan county, Tex., brought this suit September 29, 1924, against Arthur Mills, tax collector of McLennan county and also of Independent School District No. 8 of said county, also F. M. Miller, tax assessor of both said county and independent school district, also the school board of said district, to enjoin said parties from levying and collecting a special tax which had been voted at an election held in said district on April 28, 1924, alleging said special election was void because of various irregularities in holding same and making return of, and declaring the result of said election, as provided in articles 2991, 2992, 2993, 2994, 2996, 3005, and 3011 of the Revised Statutes. A temporary injunction was granted on the filing of appellants' petition. Appellees on October 11, 1924, filed their answer, and among other matters set up as a defense, not necessary to be stated here, interposed a general demurrer, also a special exception to the effect that appellant's petition shows appellants' suit to be an election contest, and, failing to show any notice of said contest of said election was served upon appellees, as required by statute, said pleading failed to show any jurisdiction, etc., and a further special exception to the effect that appellants' petition failed to charge any irregularities that affected the result of said election, failed to charge that any illegal votes were cast, and failed to charge that any one entitled to vote was denied the privilege, and failed to charge any fraud or wrong was perpetrated, etc. On October 24, 1924, on motion of appellees, the court dissolved said temporary injunction, and on same date, said cause came on for trial on its merits, and the court sustained appellees' general demurrer and all their special exceptions to appellants' pleading, and, appellants refusing to amend, said cause was dismissed.

Opinion.

We think that appellants' suit was, in effect, an election contest. Appellants sought and obtained, on filing their suit, a temporary injunction, and prayed that on final hearing said injunction be made permanent, permanently restraining appellees from levying and collecting the special tax which had been voted, but as a basis for the relief sought they alleged, in substance, said election was invalid by reason of various...