Major v. Loy

• Decision Date: 17 October 1941
• Docket Number: No. 2183.,2183.
• Citation: 155 S.W.2d 617
• Parties: MAJOR et al. v. LOY, County Judge, et al.
• Court: Texas Court of Appeals

155 S.W.2d 617

MAJOR et al. v. LOY, County Judge, et al.

No. 2183.

Court of Civil Appeals of Texas. Eastland.

October 17, 1941.

Appeal from District Court, Grayson County; Tom Suggs, Judge.

Proceeding by J. C. Major and others against Jake J. Loy, County Judge of Grayson County, and others to contest an election resulting in favor of consolidation of Common School District No. 15 in Grayson County with Van Alstyne Independent School District, in which Alta Neill and others intervened as contestees. From a judgment for contestees, contestants appeal.

Reversed and rendered.

B. F. Gafford and Brame & Brame, all of Sherman, for appellants.

R. C. Slagle, Jr., Dist. Atty., and Head, Dillard, Maxey-Freeman & McReynolds, all of Sherman, for appellees.

FUNDERBURK, Justice.

This is an election contest proceeding brought by J. C. Major and two other residents of Grayson County and of Common School District No. 15 in said county, as contestants against R. C. Slagle (Criminal District Attorney), and others, including Jake J. Loy, County Judge of Grayson County, all residents of Grayson County, as contestees. The election was one held July 27, 1940, in Common School District No. 15, otherwise called, and hereafter referred to as, Elmont School District, to determine a question of the consolidation of said district with the Van Alstyne Independent School District. The result of the election, according to official returns, as canvassed and declared, by the Commissioners' Court of Grayson County, was 38 votes for consolidation and 34 votes against consolidation. Upon hearing the contest, the court adjudged there were 36 qualified votes for consolidation and 34 votes against consolidation, thus, in effect, overruling the contest. The contestants have appealed.

Among the votes challenged by contestants was that of Alta Neill, who was found not to have been a qualified voter, and whose ballot was number 3. It was concluded, however, that since, of 72 votes cast in the election, two were numbered 3—one for consolidation and the other against consolidation,—there was no evidence that Alta Neill voted for consolidation, and, therefore, her vote was not deducted from the total number voting for consolidation. This finding and conclusion are duly challenged.

The contestees, as well as contestants, alleged that Alta Neill was among those voting for consolidation. But for the fact that such allegation by contestees (occupying the status of defendants) followed a general denial it would be conclusive of the fact so alleged. Generally one party to a suit is under no necessity of proving a fact alleged by the adverse party. There is an exception to this rule, however, where an allegation of the defendant's answer of a defensive nature follows a general denial. 33 Tex.Jur. p. 645, sec. 189, and authorities cited; Hynes v. Packard, 92 Tex. 44, 45 S. W. 562; Silliman v. Gano, 90 Tex. 637, 39 S. W. 559, 40 S.W. 391; Grand Lodge v. Walker, Tex.Civ.App., 86 S.W.2d 839, and authorities cited.

It seems to be true that although Alta Neill was a witness she was not asked how she voted, nor did she, or any other witness, testify how she voted. Such omission is very reasonably accounted for by the fact that contestees were seeking to sustain her vote as one for consolidation; and contestants were seeking to have it deducted from the number cast for consolidation. Alta Neill and others intervened in the contest proceeding making common cause with the contestees. In the petition of intervention it was alleged she voted for consolidation. The intervention was, of course, voluntary. The contestees did not join issue upon any of the allegations in the plea of intervention. It seems to us that the reason supporting the rule that allegations of the defendants (who do not come into a suit voluntarily) when following a general denial does not relieve the plaintiff of the burden of proving such fact, does not apply to a petition of intervention, just as it does not apply to allegations of a defendant in a cross-action which is also voluntary. In our opinion, the fact that Alta Neill voted for consolidation should be regarded as concluded by the pleadings as such.

If not, however, the pleadings of which the court was required to take judicial knowledge constituted evidence of the fact, and under the circumstances evidence which we think should be deemed conclusive. We are, therefore, of the opinion that the vote of Alta Neill should have been deducted from the 36 which the court determined had been properly voted for consolidation.

With reference to B. L. Stewart who voted for consolidation, the contestants by one assignment of error allege that "The court erred in finding `that B. L. Stewart was a resident of Elmont School District at the time of the election' * * *", and by another allege that "The court erred in his conclusion of law as follows `that the vote of B. L. Stewart was properly counted in favor of consolidation of said school districts'".

No independent question of merit is raised by the latter assignment of error. The conclusion of law alleged to be error was the legal equivalent of a conclusion of law that B. L. Stewart was a qualified voter in the school district. Whether such conclusion of law was right or wrong, depended entirely upon the conclusion of fact that he was a resident of the school district. The honorable trial judge, as the trier of the facts, having concluded as a fact that the voter in question was a resident of the school district—that being the only respect in which his qualification was in issue— there was no error in his said conclusion of law, independently of the error, if any, in the conclusion of fact upon which it was based.

The conclusion (finding) of fact that B. L. Stewart was a resident of the school district is the legal equivalent of a conclusion (of fact) that B. L. Stewart, being also found to be a single man, usually slept at night at the home of his son in Elmont School District. R.S. 1925, Art. 2958. Contestants make no contention in this court to the effect that there was no evidence, or that the evidence was insufficient to support a conclusion of fact that Stewart did usually sleep at night at the home of his son. Instead, it is contended that Stewart was shown, conclusively as a matter of law, not to be a resident of the school district "because the uncontroverted evidence shows that the said B. L. Stewart moved from the Elmont School District on March 26, 1940 to an apartment in the town of Van Alstyne which he maintained as a home until July 24, 1940, when he rented another house in the town of Van Alstyne and which he was maintaining as a home on the date of the election and which he still maintained on the date of the trial and the said B. L. Stewart himself testified that when he moved away from his son's home in the Elmont District to Van Alstyne in March 1940 that he did not intend to go back there to live." It thus appears that if the conclusion that Stewart was a resident of the school district was wrong for the reason contended by contestants, then it was immaterial whether or not he usually slept at night at his son's home in said school district.

Although there is considerable lack of harmony in the decisions in this state, in our opinion, assuming the constitutionality of such a provision—which we do—¹ said Art. 2958, supra, provides a fact test of the requisite residence of an unmarried qualified voter. Does a single person offering to vote and possessing all the other elements of a qualified voter usually sleep at night at a place in the District? If so, he is a qualified voter; otherwise not. We are in agreement with the conclusion upon this point as expressed by Judge King of the Beaumont Court of Civil Appeals, as follows: "The test of a single man's residence within the state, at any given time or during any given period of time, is one purely of fact, and is found in the answer to the question: `Where does he usually sleep at night?' The proper interpretation of the word `usually' in this connection is that if the voter, a single man, when he is not actively engaged in his work, has a room or habitation to which he usually returns, and where he usually sleeps at such times, then his right to vote in the precinct where such room or habitation is located is fixed by section 4 of Terrell Election Law, Act of 1905 (Acts 29th Leg. [1st Called Sess.] c. 11 [R.S. 1925, Art. 2958]), even though he should be there only a small per cent. of his time; but, if it should also appear that by reason of the nature of his occupation he was required to adopt a different place as one where he usually sleeps, then his right to vote at the former place is lost and section 22 [now R.S. 1925, Art. 2967] would govern his right to vote." Garvey v. Cain, Tex.Civ.App., 197 S.W. 765, 772. As in principle supporting such view, see, also, Linger v. Balfour, Tex.Civ. App., 149 S.W. 795, 797; Savage v. Umphries, Tex.Civ.App., 118 S.W. 893; Aldridge v. Hamlin, Tex.Civ.App., 184 S.W. 602.

In Huff v. Duffield, Tex.Civ.App., 251 S. W. 298, 299, the court said: "The word `resided,' as used in the election law, and through a long line of decisions, it has been held that the intention of the individual often has a strong, if not a paramount, influence in determining residency. Savage v. Umphries (Tex.Civ.App.) 118 S.W. 893; Linger v. Balfour (Tex.Civ.App.) 149 S.W. 795; Aldridge v. Hamlin (Tex.Civ.App.) 184 S.W. 602; Reid v. King (Tex.Civ.App.) 227 S.W. 960.

"We have seen no Texas case denying the test as to whether the person from the place with intent to return or with the intention to abandon it as a residence is a proper test, except the case of Garvey v. Cain (Tex.Civ. App.) 197 S.W. 765 [767], decided in 1917, by the Court of Civil Appeals at Beaumont, which if followed would change the residence of every United States Senator and member of the House of Representatives, the Governor of the...