Polk v. Davidson

• Decision Date: 11 October 1946
• Docket Number: No. A-1036.,A-1036.
• Citation: 196 S.W.2d 632
• Parties: POLK v. DAVIDSON et al.
• Court: Texas Supreme Court

Page 632

196 S.W.2d 632

POLK v. DAVIDSON et al.

No. A-1036.

Supreme Court of Texas.

October 11, 1946.

Original mandamus proceeding by Neal Polk against J. R. Davidson and others to compel the dismissal of primary election contest and the printing of relator's name on the general election ballot as the Democratic nominee for sheriff.

Judgment in accordance with opinion.

Vinson, Elkins, Weems & Francis, Marvin Collie, Fred R. Switzer, Blades, Chiles, Moore & Kennerly, M. C. Chiles, Fred W. Moore, and Reagan Cartwright, all of Houston, for relator.

Sam Holliday, of Houston, and Hart & Brown and James P. Hart, all of Austin, for respondents.

BREWSTER, Justice.

This is an original action for mandamus brought in this court by Neal Polk, relator, against J. R. Davidson, W. D. Miller and Judge Phil D. Woodruff, respondents.

On August 31, 1946, the Democratic Executive Committee of Harris County duly certified to Miller, County Clerk of Harris. County, that Polk was the democratic nominee for Sheriff of that county as a result of the second primary held on August 24, 1946.

On September 9, 1946, Davidson, who had been Polk's opponent in the second primary, filed in the 113th District Court of Harris County, over which Judge Woodruff presides, a contest of Polk's nomination, alleging that many votes in several specified boxes were illegal in that the voters were not residents of the precincts wherein they voted and that numerous votes cast for Polk in other designated boxes were illegal because not numbered or signed by the election judges and were, therefore, wrongfully counted for Polk.

The trial started on September 21, on Davidson's first amended original petition after Polk's motion to dismiss the case had been overruled by Judge Woodruff. However, the court sustained certain special exceptions urged by Polk, whereupon Davidson filed his second amended original petition on September 24, and the trial proceeded after Polk had answered by trial amendment. Except for Saturday afternoons and Sundays and a part of Monday, September 30, the trial continued without interruption in hearing Davidson's witnesses and was still so in progress when Polk's petition was filed in this court on October 3 as well as when this cause was submitted here on Monday, October 7.

Polk's contention here is that the case in Judge Woodruff's court is moot because it cannot be concluded soon enough for an appeal and final decision by the court of civil appeals in time for the ballots to be printed and available to absentee voters on the morning of October 16. His prayer is that this court issue a writ of mandamus directing Judge Woodruff to dismiss Davidson's suit; that Miller, as county clerk, be directed to print Polk's name on the general election ballot as democratic nominee for sheriff; and that Davidson be ordered to cease his contest.

An affidavit of a deputy district clerk in attendance upon the trial in Judge Woodruff's court shows that on September 30, subpoenas had been issued for 67 witnesses at Davidson's request and 218 at the request of Polk. An affidavit of the court reporter taking the testimony in Judge Woodruff's court states that up to October 1 the testimony received would require approximately 1150 typewritten pages; that he could transcribe about 60 to 70 typewritten pages per day from his shorthand notes; that if the case continued until October 5 "at the present rate of taking the evidence" the statement of facts would occupy approximately 2000 typewritten pages; that he could not "according to my best judgment" have such a statement of facts ready by October 16; and that his estimates are based upon his experience of 13 years as a court reporter.

However, in his answer to Polk's petition as filed herein on October 7, Davidson states that he was that day waiving all claim to illegality in the election then being contested in Judge Woodruff's court except in two boxes and was waiving any grounds of contest in those two boxes except that certain ballots counted there for Polk "were not signed by the respective presiding judges in such precincts." His counsel made substantially the same statement in their oral arguments in this court. On that basis Davidson claims that the statement of facts can be reduced to about 100 typed pages; that with the issues thus narrowed all parties can finally rest on the introduction of evidence not later than October 8; that the unsuccessful party can perfect his appeal and file a statement of facts in the court of civil appeals not later than October 13 or 14; that, since the statutes require the court of civil appeals to give election contests precedence and early hearing, "the cause can be submitted in the court of civil appeals and decision rendered in that court prior to the date that it will become necessary for the County Clerk of Harris County to require the official ballot to be printed." All these conclusions are questioned by counsel for Polk.

It is conceded that Polk's name has been duly published by Miller and posted by him in the county clerk's office as the democratic nominee, so any question on that score passes out of the case.

The general election this year comes on November 5. Therefore, absentee balloting in that election begins on October 16.

Since this court has the power, in a proper case, to direct a district judge to proceed to trial of a pending suit, it is under the duty to direct him to dismiss a cause when dismissal is the only proper judgment. Thomason v. Seale et al., 122 Tex. 160, 53 S.W.2d 764.

And when a case becomes moot the...