State v. Loomis

• Decision Date: 18 January 1895
• Citation: 29 S.W. 415
• Parties: STATE ex rel. RAWLINGS et al. v. LOOMIS.
• Court: Texas Court of Appeals

Page 415

29 S.W. 415

STATE ex rel. RAWLINGS et al. v. LOOMIS.

Court of Civil Appeals of Texas.

January 18, 1895.

Appeal from district court, Armstrong county; H. H. Wallace, Judge.

Proceedings by the state, upon the relation of J. D. Rawlings and others, for the removal of O. F. Loomis from his office as county and district clerk for Sherman county. From judgment for defendant, the state appeals. Dismissed.

Thos. F. Turner, for the State. J. V. Meek and Moore & Mack, for appellee.

TARLTON, C. J.

The state of Texas, on the relation of J. D. Rawlings and others, brought this suit under article 3390 et seq., Rev. St., to remove O. F. Loomis from the office of county and district clerk of Sherman county. From a judgment in which the defendant prevailed, this appeal is prosecuted.

Article 3415, Rev. St., of the chapter under which this proceeding was instituted, provides that "no officer shall be prosecuted or removed from office for any act he may have committed prior to his election to office." Since the trial of this cause in the lower court, an election has been held to determine who should be the incumbent of the office filled by the appellee; in other words, to determine who should be his successor. It follows that whether the appellee has been chosen as his own successor, or whether another has been elected (a qualification having taken place in the natural course of things), no inquiry need be made into the matters which are the subject of complaint in this cause. If the judgment should be reversed, there would be no issue to be tried. The controversy can now involve only a question of costs, and therefore requires no consideration at our hands. In support of this view, we cite Lacoste v. Duffy, 49 Tex. 767; Bolton v. City of San Antonio, 4 Tex. Civ. App. 174, 23 S. W. 279. We order that the appeal be dismissed at the cost of the relators and the sureties on their appeal bond.