Nelson v. Edwards

• Decision Date: 25 October 1881
• Docket Number: Case No. 1085.
• Citation: 55 Tex. 389
• Parties: E. R. NELSON v. W. R. EDWARDS.
• Court: Texas Supreme Court

55 Tex. 389

E. R. NELSON

v.W. R. EDWARDS.

Case No. 1085.

Supreme Court of Texas.

Oct. 25, 1881.

APPEAL from Titus. Tried below before the Hon. B. T. Estes.

[No briefs are on file with the record.]

BONNER, ASSOCIATE JUSTICE.

The case as made by the original petition of appellee Edwards, plaintiff below, is in effect, that, by virtue of having been duly elected sheriff of Titus county at the general election held on November 2, 1880, he was also collector of taxes, under section 16, article VIII, constitution of 1876; said county having under the tenth census less than ten thousand inhabitants. That he had taken the oath, given the bond as collector of taxes, and otherwise qualified fully as required by law, and hence was, of right, entitled to the office and the books, papers, etc., belonging thereto, and the emoluments thereof. That appellant Nelson, defendant below, wrongfully and without authority of law holds himself out as such collector and is exercising the rights, powers, privileges and duties thereof, and has wrongfully and illegally seized and taken possession of all the books, papers, blanks, furniture and appurtenances belonging to the office. He prayed for an injunction to restrain Nelson from performing or attempting to perform the duties of the office; that Nelson be required and commanded to deliver up said books, etc., and for general relief. Although in the original petition an injunction was sought, yet by amendment the action is virtually changed to one in mandamus.

It has long been decided by this court that mandamus is a proper writ to restore a party to an office from which he has been illegally ousted, or to put him in possession of one which is illegally detained from him, and to cause its books, papers and archives to be delivered into his possession. Banton v. Wilson, 4 Tex., 400.

As thus presented, the pleadings of Edwards set up a good cause of action, and the court did not err in overruling Nelson's general demurrer. The case, however, as made by the evidence, was a different one from that made by the pleadings. As shown by the statement of facts, Edwards, as alleged, was duly elected sheriff of Titus county, but as under the ninth census, taken in 1870, that county had over ten thousand inhabitants, Nelson had been elected collector of taxes at said election, and had duly qualified and been commissioned as such. That in fact Edwards had never qualified as collector, as he had alleged, but that his bond had been rejected by the commissioners' court. Neither the pleadings nor the evidence disclosed the ground upon which the bond was rejected. It was neither alleged or proven to have been a good and sufficient bond. It may have been rejected because not a good bond, or because, in the opinion of the commissioners, Nelson, and not Edwards, was entitled to the office. However this may have been, in our opinion the case as made by the evidence was so variant from that made by the pleadings as to defeat the right of Edwards to recover. Hall v. Jackson, 3 Tex., 309.

Edwards may not have tendered a good and sufficient bond in the first instance, and may never do so, and the law will not permit him to litigate a mere abstract right to an office. If, however, he did tender a good and sufficient bond, and it was rejected because, in the opinion of the commissioners, Nelson, and not Edwards, was entitled to the office, then the proceeding should have been, not against Nelson alone, but against the commissioners also, to compel the approval of the rejected bond. In this way, both the right to the...