Maupin v. King

• Decision Date: 05 February 1930
• Docket Number: No. 3350.,3350.
• Citation: 25 S.W.2d 153
• Parties: MAUPIN et al. v. KING, County Judge.
• Court: Texas Court of Appeals

Page 153

25 S.W.2d 153

MAUPIN et al. v. KING, County Judge.

No. 3350.

Court of Civil Appeals of Texas. Amarillo.

February 5, 1930.

Rehearing Denied March 5, 1930.

Appeal from District Court, Hansford County; Newton P. Willis, Judge.

Suit by W. E. Maupin and others against C. W. King, County Judge, contesting election. From judgment of dismissal, contestants appeal.

Affirmed.

Fischer & Fischer, of Wichita Falls, and Reeder & Reeder, of Amarillo, for appellants.

Hoover, Hoover & Cussen, of Canadian, Tatum & Strong, of Dalhart, and Jot Horton, of Spearman, for appellee.

RANDOLPH, J.

This suit was filed in the district court of Hansford county, Tex., by W. E. Maupin and three other resident citizens, voters and taxpayers of Hansford county, contesting an election held for the purpose of the removal of the county seat from Hansford, the then county seat. The locations as voted for in the election were Hansford, Gruver, and Spearman. At such election, it is alleged in contestants' petition that 1,278 votes were cast, of this number of votes Spearman received 876, 24 votes more than two-thirds of the total votes cast. This two-thirds majority was required by reason of the town of Spearman being situated more than five miles from the geographical center of the county.

The case was called for trial, and, after certain proceedings were had, which will be discussed hereafter, the trial court dismissed the case, and from this judgment of dismissal the contestants have appealed to this court.

The contestants' petition alleges that 107 votes of voters not qualified to vote were cast for Spearman. The grounds of disqualification alleged in the petition were: (1) That none of the named voters were bona fide residents of the county of Hansford for six months and of the state of Texas for one year prior to April 20, 1929, the date on which said election was held, and at which they voted; (2) that none of said above-named persons were bona fide residents of the county of Hansford on January 1, 1928; (3) that, although some of said above-named persons may have been bona fide residents of the state of Texas and of a county other than Hansford county on the 1st day of January, 1928, and bona fide residents of Hansford county for more than six months prior to April 20, 1929, yet none of such persons voted at said election upon tax receipts issued to them by the tax collectors of the respective counties in which they resided on January 1, 1928, but that all of them voted upon tax receipts issued to them by the tax collector of Hansford county during the month of January, 1929; (4) that the poll tax receipts issued to the above-named persons are illegally and unlawfully issued to them, in that said persons did not pay their poll taxes themselves and procure their receipts therefor, but said poll tax receipts held by the above-named persons were procured for them by others and in a manner not authorized by law.

The contestants' petition was filed in the district court on May 11, 1929. On the 2d day of August, 1929, contestants caused a subpœna to be issued out of said court for certain witnesses (said witnesses being the named parties who are charged above as being illegal voters) to testify for them in said cause, and contestants also deposited the necessary costs for the subpœnaing of said witnesses. The said subpœna was delivered to the sheriff of said county, and the sheriff of that county made his return on same to said court on the 19th day of August, 1929; said day being the first day of the August term of said court. In his return, it is alleged that the sheriff's return showed the failure to serve the witnesses named in said subpœna because they could not be found in Hansford county.

The case being called for trial, the contestants, on the 20th day of August, 1929, filed their first motion for a continuance for the want of the testimony of the named witnesses. The contestee filed his reply to said motion for continuance, setting up controverting facts to those set up in the motion, and further that the contestants made the applications to have said witnesses subpœnaed only on the 2d day of August, 1929, and that, by the use of any sort of diligence, they could have and would have ascertained at said time that the witnesses above named and shown to be out of the county were out of the county at said time, and contestants could then have filed interrogatories, and could have had the depositions of all of said witnesses to be used at the trial of the cause when called for trial. The contestee therefore objected to a continuance of the cause for the reason stated, and for the further reason that the application fails to show that the contestants could prove by said witnesses that they voted illegally at said election, or, if they did vote illegally and their vote was thrown out, that that fact would change the result of the election. The trial court thereupon overruled contestants' first motion for a continuance, and added his order to that effect.

On the 20th day of August, 1929, the contestants filed what is styled "First Amended Motion For Continuance," wherein they set out the allegations of their petition as to the disqualifications of the 107 voters, and further that the sheriff, by his return, showed that the witnesses could not be found in Hansford county. Further, contestants allege that they have used due diligence in preparing for the trial of this cause at this term of court, and, inasmuch as all of the above-named persons voted in Hansford county at said election which is being contested by contestants, the contestants had the right to assume that said persons were residents of Hansford county, and could be served with subpœnas in Hansford county, so that their qualifications as voters at said election, and the manner in which they voted, if they did vote at said election, which it is alleged they did, could have been heard by the court; and the contestants had reason to believe, before the sheriff made his return on said day, that said above-named persons were not residents of Hansford county, and could not be served with a subpœna in this county, and by reason thereof they took no other steps to obtain their testimony by depositions. Contestants further allege in said amended motion that all of the above-named persons would testify, if they were present, that they voted at said election on April 20, 1929, for the removal of the county seat from the town of Hansford, and that they voted at the Spearman voting box, and that they all voted for the removal of the county seat from the town of Hansford to the town of Spearman; that each and all of said witnesses will also show with their testimony that they were not qualified under the law to vote at said election, in this, to wit: [Here setting out the names of 17 of the witnesses only who would so testify].

Further in said motion it is alleged that the testimony of the above witnesses is material and necessary to contestants' cause of action, and they cannot obtain their testimony except by deposition, which could not, by the exercise of reasonable diligence, have been obtained before the last day of the term of this court, for the reason that the term of court ends on August 31, 1929, which term is insufficient for contestants to obtain their testimony by depositions, and that, without the testimony of the above-named witnesses, the contestants cannot safely proceed to trial in this cause.

The contestants further set out in said motion the names of other parties as disqualified voters who were not named in their pleadings, alleging that these parties had been ascertained not to be qualified voters since the filing of their petition herein, and that it was their purpose to amend their petition so as to include said parties; that, if the cause was continued to the next term of court, and contestants could have time and opportunity to follow up their information and evidence that they...