Taylor v. Nealon
| Decision Date | 02 November 1938 |
| Docket Number | No. 7470.,7470. |
| Citation | 120 S.W.2d 586 |
| Parties | TAYLOR v. NEALON et al. |
| Court | Texas Supreme Court |
Ernest Guinn, of El Paso, and Kerr & Gayer, of San Angelo, for relator.
B. W. Smith and Upton, Upton & Baker, all of San Angelo, for respondents.
This is an original mandamus proceeding filed directly in the Supreme Court by C. G. Taylor as relator against the Honorable Justices of the Court of Civil Appeals at El Paso and Haralson Wheeler as respondents. This proceeding grows out of the following undisputed facts:
1. C. G. Taylor, relator here, and Haralson Wheeler, one of the respondents here, were rival candidates for the Democratic nomination for the office of County Commissioner of Precinct No. One of Upton County, Texas, at the primary election held on July 23, 1938. As shown on the face of the election returns, the relator received a majority of two votes and was duly certified to the County Clerk as the Democratic nominee for the above-named office.
2. Respondent Wheeler filed a contest before the Democratic Executive Committee of Upton County, Texas, as provided for by Article 3148, Vernon's Texas Statutes, 1936. On August 12, 1938, the Committee heard and overruled such contest, and Wheeler appealed to the District Court of Upton County, as provided for by Article 3151, Vernon's Texas Statutes, 1936. The case was tried de novo in the district court, and on October 3, 1938, judgment was there entered in favor of Wheeler, declaring him the Democratic nominee for the office in question.
3. Relator Taylor duly excepted to the above judgment and gave notice of appeal to the Court of Civil Appeals at El Paso, as provided for by Article 3153, Vernon's Texas Statutes, 1936. On the same day, October 3, 1938, Taylor filed, and had approved, his appeal bond. On the following day, October 4, 1938, Taylor ordered the statement of facts prepared. On October 7, 1938, Wheeler filed with the Court of Civil Appeals a transcript of the record. Also, at the same time Taylor filed with the Court of Civil Appeals his motion stating that it had not been possible for him to obtain a statement of facts, requesting a dismissal of the contest on the ground that it could not be fully determined on its merits befor time for compliance with the statutes of this State relating to the posting and preparation of the ballots for the general election to be held on November 8, 1938, and, in the alternative, for additional time in which to file the statement of facts.
4. On the 8th day of October, 1938, the Court of Civil Appeals entered its order and judgment dismissing Taylor's appeal. The Court of Civil Appeals rendered an opinion giving its reasons for its order of dismissal, in which it, in effect, found and held:
(a) That the case was not moot when it was tried and judgment entered in the district court.
(b) That no challenge that the case was moot was filed in the district court.
(c) That the time was too short to allow for the proper briefing, hearing, and consideration of the appeal in the Court of Civil Appeals.
(d) That under the above record the appeal was moot, but the contest was not moot.
(e) That under the above record and findings the appeal should be dismissed, and the judgment of the district court left standing and in full force.
It is evident from the above that the judgment of the Court of Civil Appeals, in effect, denied relator his right of appeal as guaranteed by Article 3153, supra. Also, it is evident that the judgment of the Court of Civil Appeals made final and effective the judgment of the district court, even though it was duly appealed from as provided by law, merely because the time was too short to allow for the final hearing and disposition of the appeal on its merits in the Court of Civil Appeals.
5. On October 10, 1938, relator filed in the Court of Civil Appeals his motion for rehearing and to certify. This motion was overruled on the day it was filed, and this proceeding followed.
An examination of our primary election statutes will disclose that the person receiving a majority of the votes on the face of the election returns is entitled to the nomination and is entitled to be so recognized and certified, unless it shall be adjudged otherwise by some tribunal of final jurisdiction in the premises. Our statutes also provide for contests of primary elections. Such contests may begin either before the party...
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