McWhorter v. Reynolds

• Decision Date: 21 November 1941
• Docket Number: No. 2202.,2202.
• Citation: 156 S.W.2d 312
• Parties: McWHORTER v. REYNOLDS, County Attorney, et al.
• Court: Texas Court of Appeals

156 S.W.2d 312

McWHORTER v. REYNOLDS, County Attorney, et al.

No. 2202.

Court of Civil Appeals of Texas. Eastland.

November 21, 1941.

Appeal from District Court, Throckmorton County; Dennis P. Ratliff, Judge.

Election contest by Mrs. Della McWhorter against B. F. Reynolds, County Attorney, and others. From the judgment, Mrs. Della McWhorter appeals.

Affirmed.

John H. Banks and John Lee Smith, both of Throckmorton, for appellant.

E. G. Thornton, of Olney, for appellees.

GRISSOM, Justice.

This is an election contest by Mrs. McWhorter and others, against Judge B. F. Reynolds, County Attorney of Throckmorton County, and others. On June 22, 1940, an election was held in Elm Top Common School District No. 15 in Throckmorton County for the purpose of determining whether said district would be consolidated with the Throckmorton Independent School District. At this election 23 votes were cast for consolidation and 22 votes against consolidation. If Mrs. McWhorter had voted, she would have voted against consolidation and the election would have resulted in a tie.

Contestants asserted that Mrs. McWhorter was a resident of the Elm Top District and entitled to vote there, and that she was denied the right to vote at said election by the election officials. Upon a trial to the court, judgment was rendered for contestees, from which judgment Mrs. McWhorter has appealed.

As stated by the trial court, only two questions were presented upon the trial of the case, and all other questions were eliminated by agreement of the parties. Those questions were:

"Did contestant, Mrs. Della McWhorter, reside in Elm Top Common School District No. 15 of Throckmorton County, Texas on June 22, 1940, in a manner to comply with the residence requirements of our election laws?

"Was contestant, Mrs. Della McWhorter, denied the right to vote at such election by the election officials?"

The trial court filed, among others, the following findings of fact:

"Mrs. * * * McWhorter is the wife of Z. R. McWhorter. They have a son who is now, and has been for many years, in the Throckmorton Independent School District Schools, where * * * Mrs. * * * McWhorter, as the mother, has rendered such son for scholastic census purposes for many years, and as late as March 1, 1940, rendered him for scholastic purposes in the * * * Independent * * * District, and in said rendition for 1940 stated that she had resided in said Independent District for twenty-three (23) years.

"Z. R. McWhorter and * * * wife * * * own and have owned a residence located [in] * * * the city of Throckmorton * * * for many years prior hereto, and in 1935, in two different instruments, they designated such town property as their homestead, stating therein that they used and claimed it for their family homestead. Mrs. * * * McWhorter and her children live in such town property, and her husband, Z. R. McWhorter, is in town from the ranch every day, and usually takes one meal a day with her there, and spends most of the weekends there with his wife and children. Mrs. * * * McWhorter visits her husband at the ranch frequently and eats and sleeps there some. The son, Glenn, * * * stays at the ranch part of the time with his father, and comes in from the ranch to school in Throckmorton each day during the time he is staying with his father.

"Mrs. * * * McWhorter's individual personal property is located in the Elm Top * * * District * * * and she and her husband * * * both own ranch land in said Common School District. There is located on said ranch a house, fully equipped for living, where Z. R. McWhorter spends most of his time in running the ranch. He testified that he had considered the ranch his home since about January 1, 1939. There has been no abandonment of the town property for residence purposes, and I find that the town property is where Mrs. Della McWhorter resides, and did reside at the time of the holding of the election in controversy, and that such town property is in the Throckmorton Independent School District and is not in the Elm Top Common School District No. 15." (Italics ours)

The trial court's conclusions of law were in substance that ...