Wilburn v. Galloway, 4148.

Decision Date06 January 1944
Docket NumberNo. 4148.,4148.
Citation179 S.W.2d 540
PartiesWILBURN, Co.Atty., et al. v. GALLOWAY et al.
CourtTexas Court of Appeals

Appeal from District Court, Shelby County; S. H. Sanders, Judge.

Action by J. W. Galloway and others against Emmett Wilburn, County Attorney, and others, to contest an election which approved the consolidation of school districts. From a judgment declaring the contest void, the contestees appeal.

Affirmed.

E. J. McLeroy, of Center, for appellants.

T. O. Davis, of Center, for appellees.

COE, Justice.

This is an appeal from judgment of district court of Shelby County, Texas, involving the contest of an election held for the purpose of determining whether Boles Consolidated Common School District No. 78 should be consolidated with Shelbyville Independent School District No. 41, both in Shelby County, Texas, said judgment declaring the election held in Boles Consolidated Common School District No. 78 void and ordered another election to be held in each of the districts. From that judgment the contestees duly excepted and gave notice of appeal, and the matter is now before this court.

Pursuant to orders of the Commissioners' Court of Shelby County, Texas, an election was held on October 21, 1942, in both the Shelbyville Independent School District No. 41 and the Boles Consolidated Common School District No. 78, to determine whether the two districts should be consolidated as Shelbyville Independent School District No. 41. Thereafter, on November 9, 1942, the Commissioners' Court of said county canvassed the returns of said election and found and declared that the majority of the votes in each of said districts had been cast in favor of consolidating said districts. Thereafter, J. W. Calloway et al., after serving Emmett Wilburn, County Attorney, with notice and a written statement of the grounds on which they relied to sustain such contest, filed in the district court their petition, among other things alleging that 71 qualified voters participated and voted in the election held in Boles Consolidated Common School District No. 78, and named 43 of said voters, who they alleged voted against the consolidation of the two school districts, which, if true, would show that a majority of 15 of all the legal votes cast was against the consolidation of the two districts. They further alleged: "Through mistake, accident or fraud on the part of the persons who called said votes the votes so cast in said election were not properly called, counted and entered and that by reason of such fraud, accident or mistake the true result of said election was not shown by said returns and was not thereafter declared." They further alleged: "that an inspection of the ballots cast by the voters hereinabove named would show that the voters hereinabove named voted against the proposition to consolidate said two school districts and that, if the ballots, if any, accompanying the returns of said election shall show otherwise, then that the ballots they cast have been changed or have been destroyed and other ballots substituted in lieu thereof."

Contestees specially excepted to contestants' petition because it failed to allege or point out any specific act of fraud, accident or mistake, or to allege any facts comprising fraud, accident or mistake, and because being a disjunctive allegation did not allege whether the irregularity complained of was the result of fraud, or was the result of accident, or was the result of mistake. The court overruled this exception and its action in so doing is the basis for one of the main complaints made by the appellants herein.

There were other exceptions, some of which were overruled and others sustained, but we do not feel that it is necessary to set them out in detail. The court then permitted the contestants to produce at least more than 31 witnesses and, over the objection of the contestees, permitted each of said witnesses to testify that they had cast their ballot against the consolidation in the election held for that purpose, and thereafter permitted the contestants, over the objection of contestees, to produce the ballot boxes containing the returns of said election, open the same and count the ballots contained therein, and permitted contestants, over the objection of contestees, to exhibit the ballots to the voters who participated in said election and allowed said...

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7 cases
  • Vicars v. Stokely
    • United States
    • Texas Court of Appeals
    • October 24, 1956
    ...196 S.W.2d 704; Hutson v. Smith, Tex.Civ.App., 191 S.W.2d 779; Butcher v. Tinkle, Tex.Civ.App., 183 S.W.2d 227; Wilburn v. Galloway, Tex.Civ.App., 179 S.W.2d 540; Rogers v. Smith, Tex.Civ.App., 119 S.W.2d 678; Lightner v. McCord, Tex.Civ.App., 151 S.W.2d 362, Stokely's pleadings, upon which......
  • Garcia v. Avila
    • United States
    • Texas Court of Appeals
    • January 30, 1980
    ...trial court abused its discretion in concluding that it was impossible to ascertain the true results of the election. See Wilburn v. Galloway, 179 S.W.2d 540, 542 (Tex.Civ.App. Beaumont 1944, no writ). The trial court's order to impound the election material was violated. Consequently, hund......
  • Scruggs v. Perkins, 12218
    • United States
    • Texas Court of Appeals
    • October 11, 1950
    ...the holding of the trial court can not be disturbed. Commercial Standard Ins. Co. v. Davis, 134 Tex. 487, 137 S.W.2d 1; Wilburn v. Galloway, Tex.Civ.App., 179 S.W.2d 540; Sewell v. Chambers, Tex.Civ.App., 209 S.W.2d Accordingly, the judgment of the trial court is affirmed. Due to the shortn......
  • Thompson v. Willis
    • United States
    • Texas Court of Appeals
    • August 4, 1994
    ...Crutchfield, 400 S.W.2d 377, 380 (Tex.Civ.App.--Texarkana 1965, writ dism'd). The rule is no different in election contests. Wilburn v. Galloway, 179 S.W.2d 540 (Tex.Civ.App.--Beaumont, 1944, no writ), was a school consolidation case. The official canvass showed 42 in favor, 31 against. Aft......
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