Rogers v. Johns

• Decision Date: 01 January 1874
• Citation: 42 Tex. 339
• Parties: JAMES S. ROGERS v. A. H. JOHNS.
• Court: Texas Supreme Court

42 Tex. 339

JAMES S. ROGERS

v.A. H. JOHNS.

Supreme Court of Texas.

1874.

APPEAL from Brazoria. Tried below before the Hon. A. P. McCormick.

On the 2d day of December, 1873, an election was held in Brazoria county for five justices of the peace for said county.

James Rogers and A. H. Johns were candidates at said election for the office of justice of the peace of Brazoria county, for precinct No. 2; and Rogers, the appellant, having received the greatest number of the registered voters of Brazoria county cast at the different election precincts, at said election for that office, the presiding justice awarded appellant a certificate of election; appellant qualified in accordance with law, and entered upon the duties of his office.

Suit was instituted in the District Court to the January term, 1874, by Johns, for the office, on the ground that he had received the greatest number of votes of the registered voter?? of said precinct for the office, and was duly elected and entitled to the office.

Demurrer to the petition was overruled, and judgment was rendered for Johns for the office. Rogers appealed.

The statute under which the proceeding was taken, is as follows:

“SECTION II. If the contest be for the validity of an election for any district or county officer, a copy of the notices and other papers served on the parties shall be filed with the clerk of the District Court of the county in which the residence of the party holding the certificate of election is; and when so filed, the entry of the trial shall be made upon the docket of said court, the same as in other causes, and shall be tried at the next term of said District Court, and upon the rules governing proceedings in other causes; and if, upon trial, any vote or votes be found to be illegal or fraudulent, the court shall subtract such votes from the poll of the candidate for whom they were given; and, after a full and fair investigation of such evidence, shall decide to whom the office belongs; or should the election appear to have been illegally and fraudulently conducted, to order a new one, as the case may be; and the costs of suit shall be taxed by the court according to the laws governing costs in other causes; and such causes shall have precedence over all other causes.”

E. J. & E. N. Wilson, for appellant.

Munson & Shephard, for appellee.

GOULD, J.

Appellee Johns took the steps prescribed by the Act regulating contested elections (Gen. Laws of 1873, page 67) to contest the election of appellant Rogers to the office of justice of the peace of precinct No. 2, Brazoria county--for which office they were opposing candidates at an election held December 2, 1873. The cause was regularly docketed and tried in the District Court of Brazoria county, resulting in a judgment that the contestant Johns was entitled to the office. From that judgment an appeal has been taken, or sought to be taken, to this court. The statute does not give the right of appeal in such cases, and we are of the opinion that no such right exists. The...