Rister v. Plowman

• Court: Court of Appeals of Texas
• Citation: 98 S.W.2d 264
• Docket Number: No. 1727.,1727.
• Parties: RISTER et al. v. PLOWMAN et al.
• Decision Date: 30 October 1936

98 S.W.2d 264

RISTER et al. v. PLOWMAN et al.

No. 1727.

Court of Civil Appeals of Texas. Eastland.

October 30, 1936.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Suit by G. W. Rister and others against B. E. Plowman and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Cox & Hayden, of Abilene, for appellants.

Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellees.

GRISSOM, Justice.

Rister et al., as trustees of the Hillside Common School District No. 44 in Taylor county, Tex. (for themselves and for the use and benefit of said school district, and for its patrons and taxpayers and all persons residing in the district), filed this suit against Plowman et al., as trustees of the Butterfield School District, and against the county school board of Taylor county, contesting an election for the consolidation of said districts, and praying for an injunction.

The named contestees filed their original answer consisting of a general demurrer, special exception (in which it was alleged the petition "is wholly insufficient to require them to answer, or to confer jurisdiction on this Court"), general and special denials. After filing such answer, contestees filed a motion to dissolve an injunction theretofore granted, which motion was heard and sustained.

Thereafter, contestees filed their first amended original answer and plea to the jurisdiction, in which the jurisdiction of the court was challenged because the statutory notice of contest was not given, and none of the parties designated by statute as contestees were made parties defendant. The court sustained contestees' plea to the jurisdiction and dismissed the case.

This is a contest of an election held for a purpose other than the election of an officer, as provided for by article 3069, R.S.1925. Upon the trial it was agreed that Hon. Esco Walter was county attorney of Taylor county, and "was available for notice at all times"; that Hillside and Butterfield Districts were common school districts at the time of the election. Article 3070, R.S.1925 requires that in such an election contest either the county attorney or the officer who declares the official result of the election (who, in this case, was the commissioners' court, article 2806 [as amended by Acts 1931, c. 106, § 1, Vernon's Ann.Civ.St. art. 2806]) "shall be made the contestee, and shall be served with notice and statement." Article 3042 requires service of such notice and statement within 30 days after the return day of the election.

It has been held that the contest of such an election is governed by articles 3041 to 3075, and that said articles provide the only method for contesting such an election. It has also been decided that the provision for service of notice and statement on the statutory contestee within 30 days from the return day of the election is mandatory and jurisdictional and that in the absence of same the court is without jurisdiction to hear and determine the contest. Thurston v. Thomas (Tex.Civ.App.) 7 S.W.(2d) 105; Treaccar v. City of Galveston (Tex. Civ.App.) 28 S.W.(2d) 276; Gates v. Hays (Tex.Civ.App.) 95 S.W.(2d) 1020; 16 Tex.Jur., § 122, 123, p. 154, et seq.

The petition did not make either the county attorney or the commissioners' court a party defendant or contestee, as required by statute, nor did it contain allegations that notice and statement had been served on such statutory contestee....