Taylor v. Wheeler, 3812.

• Decision Date: 08 October 1938
• Docket Number: No. 3812.,3812.
• Citation: 121 S.W.2d 421
• Parties: TAYLOR v. WHEELER.
• Court: Texas Court of Appeals

121 S.W.2d 421

TAYLOR v. WHEELER.

No. 3812.

Court of Civil Appeals of Texas. El Paso.

October 8, 1938.

Rehearing Denied October 10, 1938.

Appeal from District Court, Upton County; C. R. Sutton, Judge.

Proceeding by Haralson Wheeler to contest the nomination of C. G. Taylor as Democratic candidate for county commissioner. From a judgment of the District Court in favor of Haralson Wheeler, C. G. Taylor appeals.

Reversed and entire cause dismissed.

Kerr & Gayer, of San Angelo, and Ernest Guinn, of El Paso, for appellant.

B. W. Smith and Upton, Upton & Baker, all of San Angelo, for appellee.

PER CURIAM.

This is an election contest. The appellee Wheeler was the contestant and Taylor the contestee. The parties were rival candidates for the Democratic nomination for County Commissioner of Precinct One of Upton County. The case was tried in the District Court of Upton County and judgment rendered October 3, 1938, declaring Wheeler to be the Democratic nominee, and containing the other provisions usual in judgments of this nature. From this judgment Taylor appealed, the transcript being filed in this Court October 7, 1938. It was not accompanied by any statement of facts because at that time it had not been possible to procure such statement.

The appellant in this Court moves to dismiss the contest. It is our opinion this motion should be overruled. The case was not moot when it was tried in the District Court of Upton County and judgment rendered. If it had been moot the District Court should have entered an order of dismissal of the contest. Thomason v. Seale, 122 Tex. 160, 53 S.W.2d 764. The transcript reveals no challenge of the contest in the District Court upon the ground that it was moot. The case now before this Court is that of a solemn judgment of the District Court of Upton County declaring the appellee to be the nominee. That judgment appellant contends we should set aside merely because appellant has filed a transcript and a motion to that effect, the time being too short to permit of the proper briefing, hearing and consideration of the appeal.

The idea that a judgment of the District Court may be treated so lightly is not to be considered. The appeal is moot. The contest is not; and we have no right to disregard the judgment entered in that contest except after full hearing and the ascertainment of error in its rendition. The motion to dismiss and other accompanying motions of appellant are overruled. The appeal is dismissed. Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753.

On Rehearing.

We anticipate a further proceeding for review of our judgment. In order to hasten the procedure, we make the following additional findings of fact: The contest was filed before the County Executive Committee on August 1, 1938 by Wheeler, appellee; the appeal was filed in the District Court by being filed in the clerk's office August 12, 1938 by Wheeler, contestee having prevailed before the Executive Committee. No special term of the District Court was called. The case was heard at the regular term of the District Court which convened September 26, 1938, and which, by operation of law, ended October 8, 1938. In our opinion there is not sufficient time for effective action in the event we should certify the question at issue to the Supreme Court, though we recognize that our...