Wright v. Marquis
| Decision Date | 07 November 1923 |
| Docket Number | (No. 7017.) |
| Citation | 255 S.W. 637 |
| Parties | WRIGHT v. MARQUIS. |
| Court | Texas Court of Appeals |
Appeal from District Court, McMullen County; T. M. Cox, Judge.
Suit by A. R. Marquis against C. B. Wright. Judgment for plaintiff, and defendant appeals. Affirmed.
Dougherty, Dougherty & Tarlton, of Beeville, and Frank H. Burmeister and R. R. Smith, both of Jourdanton, for appellant.
H. S. Bonham and W. G. Gayle, both of Beeville, for appellee.
This is a suit contesting the election for commissioner of precinct No. 4, in McMullen county, instituted by appellee against appellant. The cause was tried before the court and judgment rendered adjudging that appellee is entitled to the office.
The evidence showed that at the general election held on November 7, 1922, appellant was the Democratic candidate for the office of commissioner of precinct No. 4, in McMullen county, and his name as such candidate was printed on the ballot. The name of appellee did not appear on the official ballot. According to the official returns of the election, appellant received 24 votes and appellee 20 votes. The election was contested on the ground that Julius Glau and wife, Mrs. Ellen Pace, Avery Martin, Lionitis Muniez, John Martin, and Antonio Hasette had cast illegal votes for appellant. The court found that the votes of Julius Glau and wife were illegal because they were not residents of McMullen county; that the votes of Ellen Pace and Avery Martin were illegal because they were not residents of McMullen county. The court also held that a vote cast for A. R. Markuis by J. M. Whitley was intended to be a vote for A. R. Marquis, and should have been counted for him; that the vote of Mrs. Mae Hoegemeyer, who wrote the name of A. R. Marquis in the proper place on the ballot but did not scratch the printed name of appellant, should have been counted for appellee; that the vote of F. M. Galloway, who scratched the name of appellant and wrote "A. R. Maruuis" in the proper place, should have been counted for appellee. The conclusion of the court, embodied in the judgment, was that appellant received only 20 legal votes and appellee 22 votes, and the latter was declared the legally elected commissioner of precinct No. 4, McMullen county, Tex. The effect of the conclusions of the trial judge was to deduct the votes of Glau and wife, and Ellen Pace and Avery Martin, from the votes counted for appellant, and to add the two votes of J. M. Whitley and Mae Hoegemeyer to the votes that should be counted for appellee.
There is sufficient evidence to sustain the finding of the court that the Glaus had abandoned McMullen county and had made Bexar county their place of residence. In numerous conversations with different witnesses Julius Glau said that he had bought a home at San Jose, in Bexar county, and at least one witness, Henry Caron, swore that Glau had told him in 1921 that he had bought a house, and "I am going to remodel it — it is already furnished — and make it my home." He gave as his reason for this step that his wife did not like to live in Lomo Alto "because there were no conveniences out there." Lomo Alto is the place in McMullen county where Glau owned a ranch. He did buy the home in San Jose, and there was evidence to substantiate his declaration to W. D. Marquis that "he had bought a good home up there and was going to make it his home the balance of his days; that he was getting too old to work on the farm." The declarations made by Glau to a number of witnesses were permissible as evidence tending to show that he intended to make San Jose his permanent home. The same applied with equal force to Mrs. Glau.
The court found that Mrs. Ellen Pace was not a resident of precinct No. 4, McMullen county, and consequently not entitled to vote in that precinct and county. We think there is evidence to sustain the ruling of the court. Mrs. Pace was shown by the evidence to be a peregrinator having no fixed place of abode, but living more in Atascosa than in McMullen county. We sustain the action of the court as to this voter.
Avery Martin voted, as did the Glaus and Mrs. Pace, for appellant and the court rejected his vote on the ground that his residence was not in McMullen county. The facts are that Martin, who had been reared in McMullen county, in 1920 married a woman who had lived all her life in San Antonio, and continued to live there after she married Martin. He swore that for the first year and a half of his married life he was in business in San Antonio. He had no home in McMullen county, although he claimed to be a partner with his brother and that they had 30,000 acres of land leased for five years in McMullen county and that he had always paid his poll tax in that county. Martin admitted that he would have remained in business in San Antonio, if it had been remunerative. He would go from San Antonio to Tilden in McMullen county, and from there to Jourdanton, in Atascosa county, and then repeat the rounds. He had no house of his own, and the only home to which he could go was the home of his father-in-law in San Antonio, where his wife made her home. He did not intend to build a home in McMullen county, but had planned to get his landlord to build one. His plan had never materialized. The evidence failed to show any fixed intention upon the part of Martin to build a home and establish a home for himself and wife in McMullen county, and he had no domicile except the one in San Antonio, furnished by his wife through the grace of her father.
We are of opinion that the court properly deducted the four votes of Glau and wife, Ellen Pace and Avery Martin, from the votes cast for appellant.
Four of the original ballots have been made a part of the...
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