McCleskey v. State

• Citation: 23 S.W. 518
• Parties: McCLESKEY et al. v. STATE ex rel. COTTRELL.
• Decision Date: 11 October 1893
• Court: Court of Appeals of Texas

23 S.W. 518

McCLESKEY et al. v. STATE ex rel. COTTRELL.

Court of Civil Appeals of Texas.

October 11, 1893.

Appeal from district court, Wichita county; George E. Miller, Judge.

Quo warranto by the state, on the relation of M. G. Cottrell, against E. A. McCleskey and others, to annul the incorporation of a certain town. Judgment was entered in favor of relator, and respondents appeal. Reversed.

L. C. Barrett, for appellants. J. J. Ofiel, for appellee.

HEAD, J.

This suit was instituted by the district attorney of the thirtieth judicial district in the name of the state of Texas, upon the relation of M. G. Cottrell, against the mayor, marshal, and aldermen of the town of Iowa Park, to annul the attempted incorporation of said town, upon the ground that a large amount of territory had been improperly included therein. It is no longer an open question that the statute (Sayles' Civil St. arts. 340a, 506-515) under which it was attempted to incorporate this town only authorized the incorporation of the town proper, and that an attempt to include an unreasonable amount of vacant land will have the affect to annul the attempted incorporation, not only as to that part improperly included, but also as to the real town. State v. Eidson, 76 Tex. 303, 13 S. W. Rep. 263; State v. Town of Baird, 79 Tex. 63, 15 S. W. Rep. 98; Ewing v. State, 81 Tex. 172, 16 S. W. Rep. 872; Mathews v. State, 82 Tex. 577, 18 S. W. Rep. 711. `As an original question, the writer inclines to think it would have more nearly comported with the purpose of the statute in this class of cases to have held the incorporation invalid only as to the land improperly included, unless it could be shown that the votes thus obtained would have changed the result of the election as to the remainder. In this way a number of complicated questions could have been avoided which may arise as to the validity of debts undertaken to be created between the time of the attempted incorporation and the institution of the quo warranto proceedings to test its validity. The supreme court has, however, too firmly established the construction above indicated for us now to undertake to disturb it. The finding of the jury, supported as it is by sufficient evidence, would establish the invalidity of the attempted incorporation of the town of Iowa Park, by reason of there being included within its boundaries an unnecessary amount of vacant land that cannot properly be called a part of said town; but on the trial respondents offered in evidence, to sustain their plea of res adjudicata, a judgment which had previously been rendered by the district court of Wichita county, together with the information and answer in said cause, as follows: "No. 417. The State of Texas vs. H. C. Fuller et al. October 27th, 1891. This day came on to be heard the above-entitled cause, when came the plaintiff by attorney, and the defendants also appeared by attorney, and announced ready for trial, when the following agreement, in writing, was submitted to the court: `State of Texas ex rel. vs. H. C. Fuller et al. To the district attorney, J. J. Ofiel, and attorneys for relators, Carrigan and Hughes and J. P. Boyd: We, the undersigned relators in the above-named suit, hereby authorize and request you to withdraw our information in said cause, and authorize the defendants to take judgment, as we are satisfied with the present existing corporation of which defendants are officers, and have no desire to prosecute said suit. A. D. Lightsey, E. G. Vick, A. C. Bragg, R. R. Martin, Relators in the Above-Named Suit.' And the court, having inspected the same, and the district attorney representing the state of Texas raising no objection thereto, proceeds to render judgment in accordance therewith. It is therefore ordered, adjudged, and decreed by the court that the relief sought by plaintiff in this suit, to wit, a dissolution of the incorporation of the town of Iowa Park, Texas, be, and hereby is, refused, and that said plaintiff take nothing by this suit. It is further ordered that the defendants, H. C. Fuller, mayor, M. G. Cottrell, marshal, and R. S. Simms, C. W. Orr, W. Gibson, George Ligon, and E. A. McCleskey, as aldermen of said town of Iowa Park, Texas, and their successors in office, go hence without restraint on their rights to act as officers of said town under the proceedings had to incorporate the same, and that they and their successors are hereby decreed to be legally in possession of said offices under the election and other proceedings for incorporation complained of in plaintiff's information. It is further adjudged and decreed by the court that the costs of this court be taxed against defendants, and that the officers of court have their execution." An inspection of the information upon which this judgment was rendered, and which was offered in connection with it, discloses that the subject-matter of the litigation and the relief...