Thurston v. Thomas
| Decision Date | 10 May 1928 |
| Docket Number | (No. 1685.) |
| Citation | 7 S.W.2d 105 |
| Parties | THURSTON et al. v. THOMAS, County Attorney. |
| Court | Texas Court of Appeals |
Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.
Suit by Walter Thurston and others against Albert Thomas, County Attorney. From a judgment sustaining an exception and plea to the court's jurisdiction and dismissing the suit, plaintiffs appeal. Affirmed.
Adams & McAlister, of Nacogdoches, for appellants.
Albert Thomas, of Nacogdoches, for appellee.
O'QUINN, J.
This is an appeal from a judgment in a stock law election contest. The election was held in a certain described subdivision of Nacogdoches county, Tex., to determine whether or not horses, mules, jacks, jennets, and cattle should be permitted to run at large in said subdivision. The election resulted in the adoption of the stock law by a vote of 87 for the law and 46 against it. The election was held on July 24, 1926, and the result duly canvassed and declared on August 20, 1926, putting the law into effect on September 20, 1926. Appellants filed their petition herein contesting said election on August 20, 1927. Appellee filed his sworn exception challenging the court's jurisdiction to hear and determine the matter, for in that at no time had contestants served contestee with notice in writing of their intention to contest said election and the grounds upon which the contest was based, and that appellants' petition did not allege that they had at any time served contestee with notice in writing of their intention to contest said election and the grounds upon which said contest was based, as required by law. The court sustained the exception and plea to the jurisdiction, and dismissed the suit. This appeal is from that judgment.
Article 3069 (3077), Revised Civil Statutes 1925, provides that:
"If the contest be for the validity of an election held for any other purpose than the election of an officer or officers in any county, or part of a county or precinct of a county, or in any incorporated city, town or village, any resident of such county, precinct, city, town or village, or any number of such residents, may contest such election in the district court of such county in the same manner and under the same rules, as far as applicable, as are prescribed in this chapter for contesting the validity of an election for a county office."
Article 3070 (3078) provides:
"In any case provided for in the preceding article, the county attorney of the county, or if there is no county attorney, the district attorney of the district, or the mayor of the city, town or village, or the officer who declared the official result of said election, or one of them, as the case may be, shall be made the contestee, and shall be served with notice and statement, and shall file his reply thereto as in the case of a contest for office; but in no case shall the costs of such contest be adjudged against such contestee, or against the county, city, town or village which they may represent, nor shall such contestee be required to give any bond upon an appeal."
It is seen that, in order to contest an election held for any other purpose than the election of an officer or officers of a county or precinct, etc., such contest must be in the same manner and under the same rules as are prescribed for the contesting the validity of an election for a county office. Article 3042 (3051), Revised Statutes, requires that any one intending to contest the election of another for any office shall within 30 days after the return day of the election give the contestee notice thereof in writing, and deliver to him, his agent or attorney, a written statement of the grounds upon which such contestant relies to sustain such contest. This law is mandatory and jurisdictional. In the absence of such notice and statement, the court is without jurisdiction to hear and determine the matter. Cauthron v. Murphy, 61 Tex. Civ. App. 462, 130 S. W. 671; Garitty v. Halbert (Tex. Civ. App.) 235 S. W. 235; Barker v. Wilson (Tex. Civ. App.) 205 S. W. 546; Shipman v. Jones (Tex. Civ....
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