McWhorter v. Northcut

• Decision Date: 10 May 1900
• Citation: 57 S.W. 904
• Parties: McWHORTER v. NORTHCUT, Mayor, et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

57 S.W. 904

McWHORTER v. NORTHCUT, Mayor, et al.¹

Court of Civil Appeals of Texas.

May 10, 1900.

Appeal from district court, Gregg county; Tom C. Davis, Judge.

Mandamus by J. B. McWhorter against W. D. Northcut, mayor of the city of Longview, and others, to compel a reinstatement in office. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Dismissed.

F. B. Martin and Turner & McHaney, for appellant. J. M. Huffington, F. J. McCord, and Young & Stinchcomb, for appellees.

FLY, J.

This suit was brought by appellant for mandamus to compel the mayor and board of aldermen of the city of Longview, in Gregg county, to reinstate him in the office of city marshal, from which he alleges he had been unlawfully and wrongfully ousted by impeachment proceedings brought before that body. J. A. Lane, who is alleged to have been appointed in his stead, was also made a party defendant. Appellant alleged in his petition the facts and circumstances attending the ouster, under which it was averred that the proceedings by which his impeachment was procured were unauthorized by law, and the judgment of impeachment void. The trial court sustained a general demurrer to the petition, and the appellant, refusing to amend, has brought the cause here by appeal.

The term of office for which appellant sues has expired, and, should this court conclude that the trial court erred, and that appellant, at the date of trial, was entitled to the mandamus prayed for, the judgment of this court could not be lawfully executed. In Robinson v. State, 87 Tex. 562, 29 S. W. 649, the supreme court refused, on a like state of facts, to consider the questions presented, or to entertain the appeal merely to determine the question of costs; citing, in support of its ruling, La Coste v. Duffy, 49 Tex. 767, and Gordon v. State, 47 Tex. 208. In Byrom v. Finley, 88 Tex. 522, 32 S. W. 524, these cases were cited and followed. In Robinson v. State, supra, it was urged on motion for rehearing that inasmuch as the judgment complained of, if undisturbed, would be a bar to a suit for the unpaid salary, the appellants had the right to have the validity of the judgment determined. The supreme court adhered to the disposition of the case as first made, but left open and undecided the question above stated, on the ground that it was not necessary to the decision of the case. A decision of the question is necessary to the disposition of this appeal, because it is clear that appellant...