Pippin v. Holland, 14155.
| Decision Date | 13 December 1940 |
| Docket Number | No. 14155.,14155. |
| Citation | 146 S.W.2d 266 |
| Parties | PIPPIN v. HOLLAND, County Atty. |
| Court | Texas Court of Appeals |
Appeal from District Court, Montague County; Earl P. Hall, Judge.
Election contest by Joe Pippin against Louis T. Holland, County Attorney of Montague County. From a judgment for the contestee, contestant appeals.
Affirmed.
Homer B. Latham and Benson & Benson all of Bowie, for appellant.
Glenn Wilson, of Nocona, and T. H. Yarbrough, of Bowie, for appellee.
This suit involves the contest of an election in a Common School District in Montague County, Texas.
On October 15, 1938, an election was held in Lone Prairie Common School District No. 11, to determine whether or not that district would be consolidated with Nocona Independent School District. The result of the election was officially declared to be for the consolidation, by a vote of 17 in favor of consolidation and 12 against.
L. W. Ritchie and Joe Pippin gave notice to Louis T. Holland, County Attorney of Montague County, in statutory form, of their intention to contest the election; accompanying the notice were grounds set out upon which contestants would rely.
The contest was based upon allegations that the following persons, not qualified, were permitted to vote and that they voted for consolidation: T. P. Farris, Obie Vowell, Mrs. D. W. Sewell, John Gideon Thompson and Mrs. Rhoda Bell Thompson; that other persons who were legally qualified to vote in said election were denied that right, and if permitted to vote they would have voted against consolidation; they were alleged to be: J. J. Ritchie, Mrs. Vera Ritchie, J. B. Reeves and Mrs. Modrie Reeves.
Aside from general and special exceptions, not necessary to mention here, contestee answered by general denial and specially that one Mrs. A. C. Short voted against consolidation in said election, when she was not qualified to vote at the time and place.
L. W. Ritchie, one of the original contestants, moved out of the district pending suit and by amendment the remaining contestant, Joe Pippin, prosecuted the contest.
Trial was had to the court and nearly 400 pages of transcribed testimony was heard; at the conclusion of argument by counsel, judgment was entered upholding the result of the election in favor of consolidation, and denying contestant the relief prayed for. From this judgment appeal was perfected.
The trial court filed findings of fact and conclusions of law, with respect to each of those alleged to have voted illegally, as well also as to those who were alleged to be entitled to vote and were denied the right by the election officers. It was found by the court that the votes of T. P. Farris and Mrs. A. C. Short were cast without authority of law or fact; that Farris voted for consolidation and Mrs. Short against it. Relative to Obie Vowell, J. G. Thompson and Mrs. Rhoda Bell Thompson, who were alleged to have voted for consolidation when they were not legal voters, the court found that they voted, but because it was not established by a preponderance of the evidence as to how they voted, the legality of their votes became immaterial as a matter of law in this suit. The facts upon which the court relied concerning Mr. and Mrs. Thompson's votes were substantially that Mr. Thompson testified by deposition on direct examination that he voted for consolidation, but on cross-examination he said that in casting his ballot he marked out that part which read: "For Consolidation," and had no recollection how the ticket read after being thus marked. Obviously, if he marked out the words, "For Consolidation", thereafter the ticket read, "Against Consolidation", making one part of his testimony contradictory to the other. This did not destroy his testimony as a whole, but simply raised a question of fact, with the burden of proof on contestant to show that he voted for consolidation. New St. Anthony Hotel Co. v. Pryor, Tex.Civ. App., 132 S.W.2d 620, writ refused; Foster v. Woodward, Tex.Civ.App., 134 S.W. 2d 417, writ refused; Hyde v. Marks, Tex. Civ.App., 138 S.W.2d 619, writ dismissed, correct judgment.
Mrs. Rhoda Bell Thompson testified by deposition, and when asked how she voted said that she voted "for Nocona". That she did not know what was printed on the ticket, nor what was on it after she had marked out a part of it. From this the court found that contestant had not discharged his burden of showing that she voted for "Consolidation", as alleged, and that it was immaterial to the issue as to whether or not she was in fact a legal voter.
Referable to Obie Vowell and Mrs. D. W. Sewell, the remaining two alleged by contestant to be illegal voters casting their ballots for consolidation, the court found from the facts proved that they were entitled to vote in the election, and there is evidence in the record abundantly sufficient, if believed, to support the court's findings.
The four electors alleged by contestant to be legal voters in the district, who were denied the right to vote, and who would have voted against consolidation, were J. J. Ritchie and his wife, Vera Ritchie, and J. B. Reeves and his wife, Modrie Reeves. The court found as a fact that Mr. and Mrs. Ritchie lived in a house near the line between the Lone Prairie and Belcherville Districts; that the occupants of those premises had for many years been considered by the county school superintendent and the trustees of both districts as residing in the Belcherville District, and their children had always...
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