author: HIGHTOWER, C. J.

text:
    HAMILTON v. KING.
    (No. 441.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 20, 1918.)
    1. DISTRICT AND PROSECUTING ATTORNEYS <&wkey;5(2) — Declaring Vacancy — Powers oe Commissioners’ Court.
    Under Const, art. 5, § 24, only the district court, and not the commissioners’ court, may remove the county attorney from office or declare a vacancy in his office, although under section 21 the commissioners’ court may fill a vacancy existing in such office pending next general election. .
    2. Counties <&wkey;65 — Ojttces—Vacancies.
    In the existing absence of any statute or constitutional provision that the involuntary absence from the county of one of its officials engaged as a private soldier in the Army of the United States shall create a vacancy in his office, the commissioners’ court has no authority to declare that such absence constitutes a vacancy.
    8. Counties <&wkey;65— Oejtcces — Vacancy”— Military Service.
    The mere absence of a county officer while involuntarily in the military service of the United States, with no showing as to the probable duration of his absence, does not create a “vacancy” in his office.
    [Ed. Note. — For other definitions, see- Words and Phrases, First and Second Series, Vacancy.]
    Appeal from District Court, Sabine County; W. T. Davis, Judge.
    Suit by T. B. Hamilton against L. E. King. From the decree rendered, complainant appeals.
    Reversed and remanded, with instructions.
    Jas. G. Barker, of Hemphill, and W. D. Gordon, of Beaumont, for appellant.
    Minton & Lewis and L. E. King, all of Hemphill, for appellee.
   HIGHTOWER, C. J.

This is an appeal from an order made in vacation by the district judge of Sabine county denying a temporary injunction prayed for by the appellant. The appellant, T. B. Hamilton, alleged that he was the duly elected and qualified and acting county attorney of Sabine county, having been elected to that office in the general election in November, 1916, and having duly qualified as such officer, as required by law, and thereafter took charge of said office -and entered upon the discharge of his duties. The petition further alleged that in August, 1917, appellant duly appointed one James G. Barker of said county his assistant county attorney, and that said Barker duly qualified as such assistant county attorney and entered upon the discharge of the duties of the office, and ever since such appointment he had continued as such assistant county attorney and continued to discharge the duties of the office, and was .still discharging such duties at the time of the filing of appellant’s petition. It was further alleged that appellant has never at any time tendered his resignation as county attorney of Sabine county, and that he has never been removed from said office by any court or authority of competent jurisdiction, and that he is still the regular and legally authorized county attorney of said county. It was further alleged in the petition that on the 11th day of September, 1918, the commissioners’ court of Sabine county, at a regular term thereof, declared the office of county attorney of said county to be vacant, and entered an order to that effect, and that said court on the same day made an order appointing the ap-pellee, L. E. King, county attorney of said county, and that said King tendered to said court his bond as such county attorney, and that said court approved the same, and that appellee was claiming to be the duly authorized and legally constituted county attorney of Sabine county in consequence and in virtue of said orders and actions on the part of said commissioners’ court. It was further alleged in the petition that the action and orders of said commissioners’ court were unauthorized and void, for the reason, among other things, that said court had no authority under the law of this state to declare the office of county attorney of said county vacant, and had no authority to appoint the ap-pellee county attorney of said county, in the absence of a vacancy in said office; and the petition further alleged that appellant, though temporarily absent from said county, was still discharging the duties of said office by and through his duly appointed and qualified assistant county attorney at the time said commissioners’ court declared such vacancy, and was still continuing so to discharge the duties of said office. It was further alleged by appellant that the appellee, King, was threatening to assume the discharge of the duties of the county attorney of said county, and to interfere with appellant in the discharge of the duties thereof, and was also claiming the perquisites and emoluments of said office, and threatening and attempting to interfere with the right of appellant thereto, and that, unless restrained, the said King would interfere with the discharge of the duties of said office by appellant and with the right of appellant to the perquisites and emoluments of said office, etc. The prayer was for a temporary injunction restraining appellee from attempting to interfere witli or attempt to assume the duties of the office of county attorney of said county, or from in any manner interfering with the rights of appellant to the perquisites and emoluments thereof, and upon final hearing that such injunction be made final, and that appellant have judgment for general relief.

Upon presentation of the petition to the Honorable W. T. Davis, district judge of said county, a temporary restraining order was granted, and the prayer for temporary injunction was set down for hearing in vacation a few days later. In the meantime, appellee filed his answer to the petition, of appellant, interposing a general demurrer and also a general denial of all the material allegations in appellant’s petition, except such as were in said answer admitted to be true. It was admitted in the answer that appellant was duly elected to the office of county attorney for Sabine county at the general election in November, 1916, and that appellant had duly qualified and entered upon the discharge of the duties of the office and had continued to discharge the duties of said office until the 27th day of March, 1918. Appellee further alleged that on the 27th day of March, 1918, appellant was duly inducted into the Army of the United States of America as a private soldier, and on said date entered the military service of the United States, and that he has been in such service ever since said date, and was still in said service, and that he was engaged in said service in a foreign land, and was being paid by the government 'of the United States for his services as such soldier, and that the absence of appellant from Sabine county was involuntary, and that appellant could not return! to Sabine county, nor could he perform the duties of the office of county attorney at his will and option, and that, by reason of such absence from said county on the part of appellant, the office of county attorney of said county had become vacant, and that the commissioners’ court of said county had 'ascertained such facts and declared said office vacant, and thereupon appointed appellee to such office, and that ap-pellee had duly qualified under such appointment, and was, in consequence of such appointment and qualification, the duly authorized and legally constituted county attorney of said county, and was therefore authorized to perform the duties of said office, and to have the perquisites and,emoluments thereof ; and the appellee prayed that the injunction sought by appellant be denied, and his petition dismissed.

Upon the date set for the hearing of the application for injunction, no evidence was introduced by either party, and the order of the district judge denying the injunction sought by appellant was based upon the pleadings alone, as they are stated above.

In complaining of the action of the district judge denying the relief prayed for by appellant, it is his contention that the commissioners’ court of Sabine county, in declaring the office of county attorney vacant, clearly exceeded its authority, and that its-action in doing so and in appointing appellee county attorney for said county was null and void, for the reason that the authority to-remove a county official and to declare a vacancy in such office existed only in the district court of said county, and that such authority in said district court is exclusive. There can be no doubt of the correctness of the contention made by appellant that the commissioners’ court of a county in this state-has no authority or power to remove from office any county official or to declare a vacancy in any such office, but such authority seems to be vested alone in the district court. Constitution of the State of Texas, art. 5, § 24. It is provided by section 21 of the same article of the Constitution, however, that, in case of a vacancy in the office of county attorney, the commissioners’ court of such county shall have power to appoint a county attorney until the next general election. See, also, Ehlinger v. Rankin, 9 Tex. Civ. App. 424, 29 S. W. 240. The question, here to be determined is, not whether the commissioners’ court of 'Sabine county was authorized to-declare a vacancy in the office of county attorney of Sabine county, but the question is:' Was there a vacancy in such office to be filled by that court by appointment at the time it undertook to do so by appointing the appellee to such office, and was such vacancy shown by the pleadings in this case?

As stated above, it is alleged by appellant that he was a citizen of Sabine county, and that he was only temporarily absent from the county, and that he had never been in any manner impeached by any competent authority, nor his office declared vacant by any authorized tribunal, and that the duties of the office were still being discharged by him through his legally constituted assistant. On the' other hand, the showing made by appellee in his answer was, not that appellant had' removed permanently from Sabine county, but simply that he was absent from the county at the time of the action of the commissioners’ court in declaring the office vacant and appointing appellee thereto, and that appellant had been so absent from said county since March before such action on the-part of the commissioners’ court in September following, and that such absence was caused by. the fact that appellant had been inducted involuntarily into the Army of the United States. This allegation of the answer-showed, of course, that appellant was actually absent from iSabine county at the time of such action on the part of the commissioners’ court; but as to how long such absence would continue was not shown, nor was any fact alleged in the answer from which the duration of appellant’s absence could be determined, other than the statement that he was in the military service of the United States involuntarily.

After very careful investigation, we have been unahle to find any statute of this state or provision of the Constitution which declares that an absence from the county of one of its officials, who shall be engaged as a private soldier in the Army of the United ■States, shall create a vacancy in the office of such official; and, in the absence of any such provision, we are of the opinion that the commissioners’ court in this instance had no authority to declare the office of county attorney vacant, and to appoint appellee thereto, but that, in the absence of spch provision, the authority to determine and declare such question was vested in the district court of Sabine county.

In the case of Crawford v. Saunders, 9 Tex. Civ. App. 225, 29 S. W. 102, the San Antonio Court of Civil Appeals, in a case .somewhat similar to this, used this language;

“It is clear, from the language of article 1537, that a distinction is drawn between a vacancy and an absence, inability, or unwillingness to perform the duties of the office. This' is clear and palpable from a reading of the statute, which is as follows: ‘During such vacancy, * * * or whenever the justice of the peace in any precinct shall be absent, or unable or unwilling to perforin the duties of his office, the nearest justice of the peace in the county may perform the duties of the office until such vacancy shall be filled, or such absence, inability, or unwillingness shall cease.’ The vacancy could be filled by the commissioners’ court; the absence, inability, or unwillingness of the justice of the peace could be ended by him alone. In other words, absence, inability, or unwillingness do not constitute or produce a vacancy, under our statutes. We are of the opinion, therefore, that the commissioners’ court of Frio county had no authority to appoint a justice of the peace in precinct number 4, because only empowered to appoint in case of a vacancy, and the absence of the incumbent did not constitute a vacancy.”

And so, it must be said here that the mere involuntary absence of appellant from Sabine county, as alleged in the answer of appellee, with no further statement as to the duration or probable duration of that absence, did not, in our opinion, show a vacancy in the office of the county attorney and authorizing the commissioners’ court to appoint appellee to that office. We would not be understood as holding that the facts and circumstances touching appellant’s absence from said county under such circumstances might not be shown to be such as to authorize the district court of that county to declare the office of county attorney vacant; but such a showing has not been made by the pleadings in this case upon which alone the ■district judge acted in denying the temporary injunction, and for that reason we are of the opinion that, as the pleadings stood, appellant was entitled to the writ as prayed for, and that the district judge erred in denying same.

The judgment will therefore be reversed, and the cause remanded for further proceedings in conformity with this opinion, and with instructions that in the event appellant shall renew his application to said court or the judge thereof for a temporary injunction, and the same shall be presented and submitted to said court or judge thereof upon the pleadings of the parties as they now stand, then that said court or judge thereof shall grant the temporary writ of injunction prayed for upon appellant’s filing a bond in such sum as shall be fixed by said court or judge thereof for such writ.
      ®=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    SMITH et al. v. McADAMS et al.
    (No. 8026.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 16, 1918.
    Rehearing Denied Dec. 14, 1918.)
    1. Corporations <&wkey;99(l) — “Issuance ott Stock” — Constitutional and Statutory Provisions.
    Provisions of Constitution and laws, forbidding acceptance of anything for capital stock of corporations except money, property, or labor, are not violated, so as to be a defense to notes given on subscription to capital stock, where there has been no “issuance of stock” which requires actual or constructive delivery of certificates.
    2. Appeal and Error &wkey;>1010(l) — Review-Finding.
    Finding of trial court upon substantial evidence will not be disturbed by the Court of Civil Appeals.
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by Y. O. McAdams and another against T. A. Smith and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Evans & Sayle and L. L. Bowman, all of Greenville, for appellants.
    Clark & Sweeton, of Greenville, for appel-lees.
   TALBOT, J.

Y. O. McAdams and E. A. Jones, the appellees, sued T. A. Smith as principal, and J. S. Sherril, A. W. De Fee, and P. A. Cunningham, as sureties, the appellants, on a promissory note dated October 28, 1914, for the sum of $18,000, and due October 1, 1915, bearing interest at the rate of 10 per cent, per annum, and containing the usual provision for 10 per cent, additional as attorney’s fees if placed in the hands of an attorney for collection. The appel-. lees also sued the said T. A. Smith, as principal, and J. O. Boyle and Henry Massey, as sureties, on a promissory note, dated October 28, 1914, for the sum of $2,572, due October 1, 1915, bearing the same rate of interest, and providing for attorney’s fees as did the first note mentioned. The appellants answered, and so far as is necessary to state for the purposes of the appeal, in view of the single assignment of error presented, pleaded a general denial, and spe-daily that in the month of February, or March, 1913, the defendant T. A. Smith subscribed for shares of stock in the Empire Express Company, a corporation, amounting to the sum of $5,000, and in payment for said stock executed three promissory notes to the Empire Express Company, or indorsed them in blank, or indorsed them to Y. O. McAdams and S. F. Snyder, who were acting as corporate officers and the authorized agents of the Empire Express Company, and each of whom were promoting said corporation; that the notes sued on herein are renewals of the original notes given for said stock, and that said original indebtedness for which the original notes were given was not for money advanced by the plaintiffs to the defendant, as alleged by the plaintiffs in their said answer, but that said notes were given in full payment for said stock; that the said Y. O. McAdams was president of said Empire Express Company, and E. A. Jones was treasurer of said corporation, and that said notes were renewed and made payable to them at their request, but were for the original consideration as hereinbe-fore set forth, and that said original notes and indebtedness, as well as the renewals upon which this suit is based, were the only payment made for said- stock; that no stock in said corporation has ever been delivered to him, but that he is informed that such stock was attached to one or all of his notes as collateral security; that no other consideration was received by said plaintiffs for said notes; that said stock is void and worthless, and was at the time of the creation or attempted creation of the original notes and the renewals thereof, in that the whole scheme, as originated and carried out by the promoters, was void, because it contemplated and resulted in the violation of the provisions of the state Constitution and statutes, which forbid a corporation from accepting anything in payment of its capital stock, except money or property, or labor actually performed; that it was understood by the parties to the subscription contract that no money or property or labor would be paid for said stock, but that in lieu thereof the defendant would give his promissory notes as aforesaid; that if the plaintiffs advanced any money, or paid out any money, on said notes, they did so without the knowledge and consent of this defendant, and without any agreement to that effect. All other defendants pleaded surety-ship and adopted answer of T. A. Smith. The cause was tried without a jury, and judgment was rendered for the plaintiffs against -the defendants for the amount of notes, with interest and attorney’s fees. Appellants’ motion for a new trial was overruled, and they appealed.

There is but one assignment of error, and but one proposition urged in the brief. The substance of -the assignment- is that the trial court erred in rendering judgment against the appellants, because the undisputed evidence showed that the notes sued on were without consideration and void, for that they were executed and delivered in payment for capital stock of the Empire Express Company, in violation of the Constitution and laws of this state, which forbid a corporation from accepting anything in payment for such stock, except money, property, or labor actually performed. The proposition is:

“A promissory note, or renewal thereof, given in pajunent of capital stock of a private corporation incorporated under the laws of this state, is void and unenforceable.”

The court, at the request of the appellant T. A. Smith, filed the following conclusions of fact and law:

(1) Some time in December, 1912, one Snyder, who testified as a witness in the case, began the promotion of a corporation to be organized and known as the “E'mpire Express Company,” and to have a capital stock of $120,000, one-half of which was to be paid at the time the charter should be prepared and applied for.
(2) Subscriptions to the capital stock were solicited and procured by the said Snyder, who was later on assisted by the plaintiff Y. O. Mc-Adams. There were a large number of subscribers to the capital stock, procured in different amounts, and all of the amount of the stock was subscribed for, and 50 per cent, thereof paid into the company in cash, prior to the time the charter was applied for and granted by the secretary of state in January or February, 1913.
(3) Among the subscribers to the capital stock was the defendant T. A. Smith, who subscribed in writing for 500 shares, of $10 each (the stock of said corporation being divided into shares of $10 each); the details of the transaction being as follows: Snyder, for the purpose of having the stock subscription complete, had subscribed for more stock than he intended to retain. It was agreed -between Snyder and Smith that the latter would take 500 shares of the former’s subscription, Snyder to pay the company for one-half thereof and take Smith’s note for this amount and a promotion fee, and substitute Smith’s note to the company for the other half of his obligation for said 500 shares.
(3a) At the time Smith subscribed for the said stock, McAdams and .Snyder promised to have him employed by the company, when it should begin operating, as chief bookkeeper and auditor. The Empire Express Company has not begun operating an express business on account of the refusal of the railroad companies to haul its cars. It has a suit now pending in the Supreme Court, wherein it is seeking to enforce the rights it claims in this respect and to recover penalties.
(4) Under the agreement by which the company was organized, 50 per cent, of the stock subscribed for by each party was to be paid at the time of the organization, and before the charter was applied for, and it seems that the remainder was to be paid for when required by the corporation. The evidence does not render entirely certain when the remainder was to be paid. Some of the stockholders paid up their entire subscription, but the defendant T. A. Smith had not paid any of his subscription.
(5) Said Snyder, and a number of other's joining with him, had the charter prepared, showing themselves to have subscribed for the entire capital stock, and to have paid in 50 per cent, thereof, this being done by them merely to procure the charter, and there was no understanding or agreement between them, or among the stockholders, that any subscriber to the capital stock should he released from his obligation as such subscriber.
(6) The subscription of the defendant T. A. Smith was an unconditional obligation to take 500 shares of the capital stock, and to pay $5,-000 for the same, as above stated, and, in addition to this, he was to pay a promotion fee to the said Snyder of $1,650.
(7) After the charter was applied for and procured, it was arranged between the said Snyder and the defendant T. A. Smith that Snyder would accept a promissory note from the said defendant for the sum of $4,125, payable, to the said .Snyder, and that Snyder would assume Smith’s obligation to the company for the advanced payment of $2,500, due one year from date, upon the payment of which he would become the owner of the number of shaies subscribed. Wken the said Smith originally subscribed for the 500 shares of stock, ho executed a promissory note, payable to himself and indorsed in blank, for the sum of $5,000, and the notes above mentioned were executed in renewal of and in substitution for the original obligation, and included the promotion fee in addition.
(8) At about the same time the new notes mentioned in the above finding were executed, Snyder sold his interest in the company, including the promotion fees due him, to the plaintiff Y. O. McAdams, who assumed all of Snyder’s obligations, including his obligation to pay the company $2,500 on Smith’s subscription, and substantially at the same time the plaintiff E. A. Jones purchased from the plaintiff Y. O. Mc-Adams one-half of the property and interest in the corporation and promotion fees, which Mc-Adams had procured from Snyder, and assumed one-half of the Snyder obligation. Immediately after this the said Jones and McAdams paid into the company $2,500 to the account of defendant Smith’s stock subscription, and the same was accepted by the company.
(9) After said money was paid, the officers of the company filled out and signed a certificate for 500 shares of stock, purporting to be issued to the defendant T. A. Smith, and attached thereto said Smith’s renewal note for $2,500, above mentioned, and has retained possession of said certificate and said note ever since, and now has possession thereof. The certificate was never delivered to the said T. A. Smith, and was never intended to be delivered to him, until and unless said $2,500 note should be paid.
(10) When the note for $4,125, executed by Smith and Snyder, and which became the property of plaintiffs, McAdams and Jones, under the transactions above detailed, became due, Smith having failed to pay the same, or any interest due thereon, he executed four notes in renewal thereof, two for part of the interest due up to that time, and the notes herein sued on for the principal and the remainder of the interest; the notes sued on being signed by thé sureties whose names appear thereto, and each of the interest notes being likewise signed by sureties. No part of the notes sued on, principal or interest, has ever been paid, and the one for the principal sum of $1,800, including interest thereon and attorney’s fees, amounts to $2,513.50, and the one for the principal sum of $2,572, including interest thereon and attorney's fees due thereon up to this date, amounts to $3,595.20.
(11) I find that these notes are unconditional obligations, and that there was no contract when the original note, in renewal of which they were given, was executed, by which the defendant T. A. Smith was to be employed for any definite time or for any stated amount; and I further find that, when the notes herein sued on were executed, there was no understanding and nothing said about giving the defendant T. A. Smith employment with the Empire Express Company or otherwise.
Conclusions of Law.
I conclude that the defendant T. A. Smith was legally bound for the amount of the par value of the stock subscribed for, together with the amount of the promotion fees he was to pay; that the stock was never “issued” to him, in the sense prohibited by the Constitution of this state; that $2,500, or one-half of the par value thereof, has actually been paid in for his use and benefit by the plaintiffs in this case, in partial discharge of'his obligation to the company; that the notes sued on are valid and legal obligations against him and the sureties appearing thereon; that the organization of the Empire Express Company was legal and valid; and that there was nothing illegal or invalid in any of the transactions involved in this suit.

The foregoing findings of fact by the trial court are, in our opinion, supported by the evidence and justify the judgment rendered. The findings are therefore adopted by this court, and the judgment will be affirmed. Similar questions to the one here presented have been in many cases passed upon by our appellate courts, and so familiar have they become that we deem it unnecessary to cite and review them. It will suffice to say that, in our opinion, neither of them requires a reversal of this case. The contention of the appellants is to the effect that the stock in question was issued to T. A. Smith in consideration of the notesi sued on, and that therefore said notes are void; while the reverse of this contention is urged by the appellees, their insistence being that none of the stock of the Empire Express Company was issued to appellant T. A. Smith, or intended to be issued, until the stock was paid for in money. The court, upon testimony warranting it, held with the appellees, and rendered judgment in their favor. The court seems to have taken the view, which we think is correct, that there could not have been an issuance of the stock, within the meaning of the respective provisions of the Constitution and statute prohibiting corporations from issuing stock, except for money paid, labor done, or property actually received, without either an actual or constructive delivery of the certificate representing the stock, and the effect of its finding is that there was neither an actual nor a constructive delivery of such certificate in this case. The issues of fact upon which a decision of the case turned were controverted issues, and since the trial court, upon substantial evidence authorizing it, resolved them in favor of the appellees, this court would not be warranted in disturbing the judgment rendered.

It is therefore ordered that the judgment be affirmed.
      ®s»For oilier eases see .same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BRADY, J.

text:
    MOORE et al. v. PLOTT.
    (No. 6107.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 4, 1918.)
    1. Appeal and Error <&wkey;837(3) — Review-Record.
    On appeal from an order granting a temporary injunction, ex parte and in chambers, only the record as it existed at the time the writ was granted can be considered.
    2. Elections <&wkey;181 — Markins Ballots.
    Vernon’s Say les’ Ann. Civ. St. 1914, art. 2969, is only directory as far as “writing the name of the candidate for whom a voter desires to vote in the blank column, and in the space provided for such purpose,” is concerned, and a vote was not illegal,, where the printed name of the candidate was scratched and the name of another written in the space provided for the printed name.
    3. Elections <&wkey;l, 16 — Right to Vote.
    Suffrage is not a natural or inalienable right, yet it is a privilege conferred by the Constitution, and is not to be taken away, except by clear command of law.
    4. Injunction &wkey;>118(4) — Pleading—Inadequate Remedy at Law.
    Where a petition and affidavit for injunction to restrain the commissioners’ court from canvassing election returns and declaring the results stated that the plaintiff desired to file a contest of election against M., and that M. absented himself so that notice thereof could not be served upon him, an injunction should not have been issued, because in failing to negative other than personal modes of serving notice of contest there was no showing that plaintiff did not have an adequate remedy at law.
    5. Injunction <&wkey;80 — Political Functions —Canvassing Boards.
    The commissioners’ court, in canvassing and declaring results of elections, is exercising a political and not a judicial power, and the exercise of such power cannot be enjoined.
    Appeal from District Court, Falls County; W. A. Patrick, Judge.
    Action by C. H. Plott against C. O. Moore and others. From an order granting a temporary injunction, the defendants appeal.
    Reversed and rendered.
    Spivey, Bartlett & Carter, of Marlin, for appellants.
   BRADY, J.

In this case appellants appealed from an order granting a temporary injunction, made ex parte and in chambers. The injunction restrains appellants, E. M. Dunson, as county judge and ex officio chairman of the commissioners’ court of Falls county, and the other members of the commissioners’ court of said county, from canvassing the returns, and declaring the result of the last general election as to the office of sheriff of Falls county, until the further orders of the court.

Appellee filed his verified petition in the court below, with certain supporting affidavits attached, alleging that in said election he received 934 votes for sheriff, and that appellant C. O. Moore received 1,454 votes for such office; that appellee was the Democratic. nominee for sheriff, and that his was the only name printed upon the Democratic ticket for that office at said election. Appellee further averred that at least 1,000 of the votes cast, counted, and returned for appellant Moore were absolutely void, because said Moore was not the nominee of the Democratic party, nor of any other political party having a ticket in the said general election, and because the electors who attempted to vote for Moore prepared their ballots by drawing a line through the name of appellee, and writing in the name of O. O. Moore in the space left for appellee on said Democratic ticket, and that they did not write Moore’s name in the blank column on the ballot, in the space left for the office of sheriff, as required by law; further, that some of the said electors did write the name of Moore in the blank space on the Republican ticket, the Socialist ticket, the Independent ticket, and at other places on the ballot used at the election.

Appellee averred that the voters were without legal authority to so prepare their ballots, and that each such ballot so cast, counted, and returned was void, because the law required the voters desiring to vote against appellee, and for appellant Moore, to write Moore’s name in the blank space provided and left for that purpose upon the official ballots.

Appellee further alleged that appellant Moore did not receive as many as 509 legal votes cast at such ejection, and that appellee’s majority of the legal votes cast for sheriff was at least 500, and that he was entitled to a certificate of election, and prayed therefor.

It is alleged that the office of sheriff in said county has a pecuniary value of $1,000 a year, and that appellee is entitled to the fees and emoluments thereof by virtue of his claimed election to the same.

In his petition appellee alleged his intention to contest the election, and that by law he was required to serve notice upon appellant Moore of his intention to contest such election within 30 days after the return day thereof, and' upon information and belief charged that appellant Moore had absented himself from Falls county, his whereabouts being unknown to appellee, with the intention of remaining away an indefinite time, and with the purpose of defeating service of such notice and appellee’s right under the law affording the right of contest. Appellee alleged that he had no adequate legal remedy, and prayed for a writ of injunction restraining the county judge and other members of the commissioners’ court from canvassing the returns of said election for the office of sheriff, from declaring appellant Moore to be the duly elected sheriff of said county, and from issuing a certificate of election to said Moore, and that upon final hearing the injunction be made perpetual.

As we have stated, there are a number of supporting affidavits attached to appellee’s petition, which show that a large majority of the votes cast for appellant Moore for sheriff were prepared by the voters’ having scratched appellee’s name from the Democratic ticket and writing Moore’s name, either in that column or in .other columns on the ballot provided for the tickets of other political parties, and that in but a very small percentage of cases did the voters casting their ballots for Moore write in his name in the blank column on the ballot provided by law for that purpose.

While it may not be a fact of much importance in this case, yet it is worthy of note that the said supporting affidavits show that, as to the voting boxes covered by said affidavits, practically 90 per cent, of the votes cast for appellant Moore were prepared by the voters writing in the name of Moore in the Democratic column, after having scratched appellee’s name therefrom.

The trial judge considered appellee’s petition, together with his supporting affidavits, ex parte and in chambers, and his flat thereon and the record reveal that upon such evidence alone he granted the temporary injunction, substantially as prayed for by appellee, and the writ was issued and served accordingly.

In this character of proceeding, we are required to consider the record just as it existed at the time the writ was granted. The case comes to us alone upon appellee’s petition, with the supporting affidavits attached, the fiat of the judge entered thereon, and the writ issued under such order. Appellants have filed briefs in this court, but no briefs are upon file for appellee.

In their brief appellants present several assignments of error and propositions, which we will consider. But the fundamental question presented for our decision is whether or not appellee’s petition and the affidavits attached showed a good cause of action, and whether, based thereon, the trial court properly granted the temporary injunction. If not, it was fundamental error; and this question calls for a statement and consideration of the statute governing such an election, and a review of the authorities bearing upon the questions arising therefrom.

Appellants make the proposition that the injunction should not have been granted, because the petition shows that appellant Moore received a majority of the votes cast in said election, and that they were counted for him by the managers of the election, and returns accordingly made, and that the petition wholly fails to show that said votes were illegal; that the persons desiring to vote for appellant Moore had the legal right to scratch appellee’s name from the ballot, and write in the name of appellant Moore at any proper place for the office of sheriff, either in the ticket of any political party, the name of which appeared on the ballot, or in the blank column provided for that purpose on the right-hand side of the ballot.

The effect of this proposition is to assert that the statute on the subject is directory, and not mandatory. In this connection, it is to be stated that the sole ground of attack upon tire votes cast for appellant Moore, contained in appellee’s petition, is that such voters did not write in the name of Moore at the proper place on the ühllot, to wit, the blank column, and appellee does not allege any fraud or mistake in the election, nor does he question the legal qualification of the electors who so voted for appellant Moore, nor any unfairness in the election, save in the manner in which the votes were prepared which were cast for Moore.

The statute governing this particular matter is article 2969, Vernon’s Sayles’ Civil Statutes. After directing the form and method of printing the ballots, and the arrangement of the tickets of each political party in parallel columns, this article provides that:

“When a voter desires to vote a ticket straight, he shall run a pencil or pen through all other tickets on the official ballot, making a.distinct marked line through such ticket not intended to be voted; and when he shall desire to vote a mixed ticket, he shall do so by running a line through the names of such candidates as he shall desire to vote against in the ticket he is voting, and by writing the name of the candidate for whom he desires to vote m the blank column and in the space provided for such office; same to be written with black ink or pencil, unless the names of the candidates for which he desires to vote appear on the ballot, in which event he shall leave the same not scratched.” (Italics ours.)

It will be seen that literally this statute requires a voter, in a ease like this, where he desires to vote against a candidate whose name appears upon the oxncial ballot, and for another whose name does not appear thereon, to write the name of the candidate for whom he wishes to vote in the blank column and in the space provided for such purpose. If this statute be mandatory, it is clear that most of the votesi cast for appellant Moore under the allegations of appellee’s petition were illegal and void, and that, so far as this question alone is concerned, it was not error to grant appellee his temporary injunction. On the other hand, if the statute is merely directory, then the failure to observe its directions would constitute, at most, an irregularity, which under the authorities would not avoid the election, or render the votes so cast illegal, and, independently of any other question, the action of the trial court in granting the injunction would be fundamental and reversible error. This is the main question in the case, and its importance warrants, if it does not require, at least a brief review of the decisions and authorities controlling the question.

Mr. McCrary, an eminent writer upon the subject of elections states the rule laid down by the weight) of authority as follows:

“The language of the statute to be construed must be consulted and followed. If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute must so hold, whether the particular act in question goes to the merits, or affects the result of the election, or not. Such a statute is imperative, and all considerations touching its policy or impolicy must be addressed to the Legislature. But if, as in most cases, that statute simply provides that certain acts or things shall be done within a particular time or in a particular manner, and does not declare that their performance is,essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election.” McCrary on Elections (4th Ed.) p. 169.
“Unless a fair consideration of the statute shows that the Legislature intended compliance with the provisions in relation to the manner to be essential to the validity of the proceedings, it is to be regarded as directory merely.” Id. p. 170.
“Those provisions of a statute which affect the time and place of the election, and the legal qualification of the electors, are generally of the substance of the election, while those touching the recording and return of the legal votes received, and the mode and manner of conducting the mere details of the election, are directory. The principle is that irregularities which do not tend to affect results are not to defeat the will of the majority; the will of the majority is to be respected, even when irregularly expressed.” Id. p. 172.
“The view here expressed is fully confirmed by the decision of the Supreme Court of Michigan in People v. Bates. In that ease it was held that an elector is not to be deprived of his vote, either by the mistake or fraud of an inspector in depositing it in the wrong box, if the intention of the voter can be ascertained with reasonable certainty. Nor should ballots be rejected because of being put in the wrong box by the honest mistake of the voters themselves. In that case a state and city election were both held at the same time and place, under the charge of the same officers, and seven ballots for city officers were found at the closing of the poll in the state box. The circumstances of the case made it, in the opinion of the court, reasonably certain that these ballots were in good faith put in by electors, and they were accordingly counted.” Id. p. 176.

The case of State ex rel. Millican v. Phillips, 63 Tex. 393, upon a similar question, states the rule as follows:

“The decisions tend rather to restrict the exceptions which exclude the ballot, rather than to extend them; to admit the ballot if the spirit and intention of the law is not violated, although a literal construction would vitiate it. Druliner v. State, 29 Ind. 308 ; Stanley v. Manly, 35 Ind. 275; Kirk v. Rhoads, 46 Cal. 398.”

In the well-reasoned case of Fowler v. State, 68 Tex. 30, 3 S. W. 255, Chief Justice Willie, in a suit involving irregularities in the methods of voting at an election, and in the manner of making returns, used this language :

“The statute does not say that a failure to pursue the course pointed out by it in these respects shall vitiate the election, nor is there anything in the nature of these provisions which requires us to give them that effect. The object of every popular election for officers is to ascertain the will of the people as to what persons shall serve them as such in the various positions to be filled. A free, fair, and full expression of the public will is sought, and certain means are prescribed by law as the most certain to bring about the desired result. Some of these,_ from their very nature,' or from the manner in which they are prescribed, are deemed absolutely essential to the accomplishment of the desired result. Among these may be named the requirement that the voting shall be by ballot; that it shall take place on a certain day, and within certain precincts, etc. These are prescribed to insure perfect freedom of choice to the citizen, to serve his convenience in getting to the polls, and to bring out a full vote at the election.
“Then there are other requirements, such as those which have been neglected in this case, that are merely formal in their character. The law deems that, it is proper that they should be pursued in order to prevent frauds in the election, and tampering with the votes and returns. If strictly followed, .tboy furnish the best evidence that the election has been fairly conducted, and the burden of proof to show that it was not, either wholly or in part, rests upon the party attacking the returns. But these requirements are always treated as directory, unless the law, either expressly or in effect, makes them essential to the validity of the election. Electors must not be deprived of their votes on account of any technical objection to the manner in which the election has been held, or for any misconduct on the part of its presiding officers, if .these have not affected the true result of the election. Cooley’s Constitutional Limitations, 617, 618; Prince v. Skillin, 71 Maine, 361 [36 Am. Rep. 325]. This would be to deprive the citizen of a great constitutional privilege for a mere informality; to place it within the power of a few persons to defeat the right of suffrage altogether. The very means provided to insure a fair and proper election might become an instrument of fraud and dishonesty. Hence, all such irregularities of the officers in the conduct and return of the election as have not prevented the electors from a free and fair exercise of the right of suffrage, and from having their votes fairly estimated for the candidate of their choice, and which the law has not declared should set aside their ballots, must be treated as informalities not vitiating the election. This principle is to be taken with the qualification that it must be made to appear that the neglect or misconduct of the officers has not, in the particular case, prevented an honest and fair election.”

Associate Justice Brown, speaking for the Supreme Court in the case of State v. Conner, 86 Tex. at page 143, 23 S. W. at page 1107, quoted with approval the following language:

“A clause is directory when the provision contains mere matter of direction and no more, but not so when they are followed by words of positive prohibition.”

In Kulp v. Railey, 99 Tex. at page 316, 89 S. W. 959, Associate Justice Williams said:

“After being defeated at a free and fair election by the votes of the opposing party appellant’s only complaint is that the candidate for whom those votes were cast was not regularly nominated by that party before the election. It would seem that the election itself ought to be a sufficient answer to this position. Certainly success in maintaining it would be a curious result of an effort on the part of the Legislature to promote fairer elections. To justify a court in thus rejecting the ballots of voters invested by the Constitution with the elective franchise who voted fairly and in good faith to fill an office which the Constitution required to be filled at that time and by such voters, nothing will suffice short of a clear legislative command. This is the principle uniformly applied in determining such questions.”

Further on in the opinion he quotes with approval from the case of Davis v. State, 75 Tex. 424, 12 S. W. 957, the following language :

“The main design of all election laws is, or should be, to secure a fair expression of the popular will in the speediest and most convenient manner, 'and we think a failure to comply with provisions not essential to _ attain that object should not avoid the election, in the absence of language clearly showing that sueh was the legislative intent.”

In Clark v. Hardison, 40 Tex. Civ. App. 611, 90 S. W. 342, Chief Justice Rainey, announcing the decision of the Court of Civil Appeals for the Fifth District, said:

“Election laws are enacted for the purpose of ascertaining the will of the electors, and the failure to observe the directory provisions of the law will not nullify an election if it shows a fair and honest expression of the electors’ will. If, however, by the failure to observe such provisions there is no fair expression of the voters’ will, or if any fraud is shown to exist in conducting the election, then the failure of sueh observance becomes material. There is no charge of fraud or that the result of the election in this case does not reflect the honest sentiment and convictions of those voting at said election.”

See, also, Savage v. Umphries, 118 S. W. 893; Short v. Gouger, 130 S. W. 267; Altgelt v. Callaghan, 144 S. W. 1166.

Citation of authorities to the same effect might be multiplied ad infinitum, but we think the above, cases and authorities are sufficient to clearly indicate the true rule in this state, as well as elsewhere, upon the question and principles which must control this case. We have applied these rules to the statute under consideration, and have reached the conclusion that the statute, in so far as it affects the subject-matter of this suit, and the validity of the votes east for the appellant Moore, at least as against the attack made by appellee, is directory, and that the failure of the voters to observe the directions of the statute will not invalidate their votes, nor defeat their will as expressed.

Suffrage is not a natural or inalienable right, yet it is a privilege' conferred by the Constitution, and is not to be taken away, except by clear command of law. Election laws are generally enacted to promote the free and fair expression of the popular will, and to insure the purity and honesty of the ballot. Sueh is the prime object of our election statutes, and the provisions of article 2969, in question, were manifestly included for the ■benefit and convenience of-the voters, and the failure to observe the same is not declared by the statute to invalidate either the election or the vote cast.

An example of a mandatory provision in election laws, under the principles announced, is found in another section of the very same law we are considering, being article 3097, Vernon’s Sayles’ Civil Statutes. Said article prohibits any official ballot from containing any symbol or device, or any printed matter, except that which is required by law, and provides that no ballot cast in violation of this article shall be counted for any candidate. It is not doubted that the statutory provision just quoted is of an imperative nature, because by its very terms it prescribes the penalty and consequences that shall flow from a failure to observe it. No sueh legislative intention is to be found in article 2969, which is invoked in this case. The distinction between the two classes of regulations is, to our minds, manifest.

In this case we think it clear, from the averments of appellee’s petition, that it was the intention of the voters who cast the votes assailed to choose the appellant C. O. Moore as sheriff of Falls county, rather than the appellee, whose name they scratched. The manner in which they expressed this choice, although not literally following the terms of the statute, was in substantial compliance therewith.

Taking the averments of appellee’s petition as true, as we must, there is at most a charge of irregularity' in the method of expressing the will of the majority, with no allegations of fraud or collusion. It appearing that an honest and fair expression of the electors’ choice was had, we are compelled, under the principles laid down in the above authorities, to hold that noncomplianee with the literal directions of the statute would not operate to render their votes illegal or void. Therefore, as a matter of fundamental error, and also as sustaining appellants’ fourth assignment of error, we decide that the injunction was erroneously granted by the trial court, and that such error requires the reversal of this case.

Another ground upon which we think this case must be reversed is presentea by appellants’ first assignment of error, which is as follows:

“The temporary injunction was erroneously granted, because the sole ground therefor was that appellee, Plott, desired to file a contest of an election against appellant Moore, and that Moore absented and secreted himself, so that notice thereof could not be served upon him, the petition not negativing any of the other modes pointed out by the statute by which appellee could have procured service of such notice”

—and by appellants’ third assignment of error, which is that:

“The injunction should not have been granted, because the petition wholly fails to negative that the plaintiff has an adequate remedy at law.”

It is true that appellee in his petition made the general allegation that he was without any adequate legal remedy to preserve and protect his vested rights to the said office of sheriff; but this must be taken in connection with all the other averments of the bill. If the petition as a whole shows that it is without equity, and that in fact the appellee had an adequate legal remedy, the injunction should have been denied. As has been before stated, appellee alleged his intention to contest the election, and averred as his reason for resorting to the equitable remedy of injunction that appellant Moore had secreted himself and concealed his whereabouts in order to evade service of the statutory notice of appellee’s intention to contest the election. He did not, however, allege any collusion between appellant Moore and the commissioners’ court, nor any fraud, nor any legal wrong that would result from canvassing the votes and declaring the result of the election, and in awarding a certificate of election to appellant Moore, save and except the alleged irregularities in the preparation of the ballots cast in favor of Moore. Nor did appellee negative that appellant Moore had an agent or attorney in Falls county, or .elsewhere, upon whom service might be had; nor that said appellant had a usual place of -abode or business at which notice of intention to contest the election might be left with some person over the age of 16 years.

Article 3053, Vernon’s Sayles’ Civil Statutes, provides the modes of serving a notice of contest, which may be either by delivering same to the contestee in person, if he can be found in the county, or, if he cannot be found, then upon his agent or attorneys, or by leaving the same with some person over the age of 16 years at the usual place of abode or business of such contestee. It is clear that appellee’s petition did not negative any of the several modes of service, except that appellant Moore was not to be iound within the county.

Our statute makes special provision for a contest ■ of such an election, to which legal remedy appellee averred he intended to resort. If appellant Moore was illegally elected, or illegally declared elected, this statute affords an adequate legal remedy; or if appellant Moore should intrude into the office to which appellee is entitled, quo warranto under either statute would also Re.

The reasons assigned by appellee for asking an injunction, because of the alleged concealment of his whereabouts by appellant Moore, are wholly inadequate to justify a resort to equitable relief. Therefore we are of the opinion that appellee had an adequate remedy or remedies at law, and that no sufficient grounds-were alleged to enable him to invoke the equitable powers of the court, and for this reason, also, the case will be reversed.

There-is still another reason of a fundamental character, presented by appellants’ second assignment of error, why we think the injunction was erroneously granted in this case. The record shows that the injunction was awarded to restrain the commissioners’ court from canvassing the returns and declaring the result of an election for the office of sheriff. It now seems to be settled doctrine in this state that the exercise of such power is not judicial, but is political, and that a court is without jurisdiction to enjoin the poUtical function of canvassing returns and declaring the result of an election. We do not deem it necessary to review the authorities sustaining this proposition, but content ourselves with referring to the following cases, and to quote briefly from a recent decision by the Supreme Court: City of Dallas v. Dallas Consolidated Ry. Co., 105 Tex. 337, 148 S. W. 292; Watson v. Cochran, Co. Judge, 171 S. W. 1067; Fuller v. McHaney, Co. Judge, 192 S. W. 1159; Lyle v. Longan, 162 S. W. 1156; Townsen v. Mersfelder, 49 Tex. Civ. App. 289, 109 S. W. 420; Robinson v. Wingate, Co. Judge, 36 Tex. Civ. App. 65, 80 S. W. 1068; same case on writ of error, 98 Tex. 267, 83 S. W. 182.

In the case first cited, the question before the court was the power of the district court to grant an injunction restraining the mayor and board of commissioners of the city of Dallas from canvassing the returns and declaring the result of an election upon an ordinance submitted to the voters under the initiative principle embodied in the city charter. It was held that the district court erred in granting the injunction, on the ground that, under the facts alleged, the canvassing of the returns and declaring the result of the election involved a political question, not cognizable by a court of equity. This conclusion was reached, notwithstanding the complaint alleged large pecuniary interests and property rights, which would be injuriously affected, should the ordinance become effective upon the declaration of the rqsult of the election. We think it is proper to quote the following from the opinion of Justice Phillips:

“As elections are essentially the exercise of political power, it cannot be doubted that all action properly related thereto and necessary to their completion is from the same source, and is but the expression of the same power. The canvassing of the returns of an election is necessary to the determination of the result; it is an integral part of the election itself, without which the election is a vain proceeding, and as such inheres as a right sanctioned by the political power, as absolute as the right of the electorate to vote or for the election to be held. When it is declared that because of their relation to the' political power of the government, elections are beyond the control of the judicial power, it is meant that the whole election, including every step and proceeding necessary to its completion, is exempt from judicial interference; and the canvassing of the returns of an election must therefore be held as within the rule and justly entitled to its protection.”

The other authorities above cited are to the same effect,' and seem to be decisive of the question, which is no longer an open one in this state. Therefore we think it was fundamental error for the court below to issue the injunction restraining the members of the commissioners’ court from performing the ministerial duty imposed upon them by law to canvass the returns and declare the result of the election in question.

For all of the above reasons, the order and decree of the court below will be reversed, and judgment here rendered for appelLants, dissolving, setting aside, and holding for naught the temporary injunction against appellants.

Reversed and rendered.
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author: KEY, C. J.

text:
    MATTHEWS et al. v. EYRES.
    (No. 5974.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 14, 1918.
    Rehearing Denied Deo. 18, 1918.)
    1. Courts <&wkey;480(2) — Injunction — Staying Proceedings on Judgment oe Other Court.
    Under Yemon’s Sayles’ Ann. Civ. St. 1914, art. 4653, providing that injunctions granted to stay execution of a judgment shall be returnable to and tried in the court where judgment was rendered, a suit to stay execution of a judgment foreclosing a chattel mortgage cannot be maintained in a court of a county other than the one in which the judgment was rendered, even though it was claimed that the property involved did not belong to the mortgagor, etc.
    2. Courts <&wkey;480(2) — Injunction—Staying Execution.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 465.3, providing that injunctions granted to stay execution of -a judgment shall be returnable to and tried in the court where judgment was rendered, applies to every one who seeks by injunction to stay the execution of a judgment, even though such person was not a party to the original suit.
    3. Courts <&wkey;480(2) — Injunction—Staying Execution.
    Where defendant was in possession of personal property and the main purpose of his suit was to enjoin execution of the judgment foreclosing a chattel mortgage thereon, he cannot avoid the provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4653, requiring return of writ to the court rendering the judgment, on the theory that he sought to Quiet his title.
    Appeal from Travis County Court; D. J. Pickle, Judge.
    . Suit by W. G. Eyres against Geo. S. Matthews and the Crockett State Bank. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded, with directions to dismiss.
    Moore & Ellis, of Crockett, for appellants.
    Thelbert Martin and A. S. Phelps, both of Austin, for appellee.
   KEY, C. J.

In December, 1914, Steve Beasley, as principal, and W. P. Harris, as surety, executed a promissory note payable to the Crockett State Bank; and at the same time Steve Beasley executed a chattel mortgage on certain personal property, including a piano, a buggy, harness, and a horse. After the note fell due, the bank sued 6teve Beasley and his wife, and recovered a personal judgment against him, and a judgment against both his wife and him foreclosing the mortgage referred to, and ordering the property above mentioned to be sold in satisfaction of the judgment. Upon that judgment an order of sale was issued, and placed in the hands of G. S. Matthews, the sheriff of Travis county,- where the property referred to was situated; whereupon, W. G. Eyres, who was not a party to the suit in the county court of Crockett county, wherein the judgment referred to was rendered, brought an injunction suit in the 'county ’court of Travis county, against the bank and Matthews.

In their answer, the defendants, Matthew's and the bank, by proper pleas challenged 1he jurisdiction of the county court of Travis county, which pleas -were overruled, and upon trial the court rendered judgment to the effect that Eyres was the owner of the property; that he be quieted in his title and possession thereof, free from any claim or lien thereon asserted by the defendants; and that the temporary injunction which had previously been granted, restraining the defendants from levying on or selling the property referred to by virtue of an order of sale issued out of the county court of Houston county, should be perpetuated. The bank and Matthews have appealed.

We sustain the assignments of error which complain of the action of the trial court in overruling the defendants’ exceptions, challenging the jurisdiction of the county court of Travis county to enter a judgment restraining the defendants from executing the order of sale issued by the county court of Houston county. Our ruling upon that point is based upon article 4653, Vernon’s Sayles’ Texas Civil Statutes, which provides:

“Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered.”

That statute was construed by this court in Brown v. Fleming, 178 S. W. 964, a case similar in substance to the instant ease.

It may be true, as contended by counsel for appellee, that the property in question was the separate property of Mrs. Beasley, who did not sign the mortgage; and that before the foreclosure suit was brought in Houston county appellee purchased it -from Mrs. Beasley, and acquired full title thereto; and, if such be the case, he is entitled to protection whenever he invokes the jurisdiction of the proper court to grant such protection. But the fact remains that the relief sought and obtained in the court below, not only stayed and suspended the process issued by the county court of Houston county, but the effect of the judgment-is to nullify that portion of the judgment rendered by that court which established and foreclosed a lien upon the property. Such being the result, the case comes clearly within the purview of the statute quoted; and therefore the preliminary injunction should have been returned to that court; and, as the statute quoted is mandatory, the county court of Travis county had no jurisdiction to litigate the rights of the parties. Nor is it material that appellee was not a party to the litigation which resulted in the judgment of the county court of Houston county. The statute quoted is noti limited to injunctions granted at the instance of a party to the judgment, and applies to every one who seeks by injunction to stay proceedings in a suit, or the execution of a judgment. In Brown v. Fleming, supra, the. injunction was sought by one who was not a party to the judgment under which the order of sale had been issued, and, notwithstanding that fact, this- court held that the statute applied to that case. Nor is it material that, in addition to having the order of sale in this case nullified, appellee also sought and obtained judgment quieting his title to the property. He was in possession of the property, and his petition stated no cause of action entitling him to a judgment quieting his title; and it is manifest that the main, if not the only, purpose of his suit, was to prevent the execution of an order directing the sheriff to sell the property.

While this court is not called upon to justify the wisdom of the Legislature in making proceedings of this kind returnable to the court where the judgment was rendered, it is not amiss tovsay that the wisdom thereof seems manifest. If that course was not pursued, much confusion and conflict of authority might result; in fact, a sheriff might find himself in the embarrassing situation of being ordered by one court to do a particular thing, and being ordered by another court of equal dignity not to do it. As pointed out in Brown v. Fleming, when an injunction is sought to prevent the sale of property under an ordinary execution which does not order the sale of any particular property, the statute does not apply.

Our conclusion is that the county court of Travis county had no jurisdiction to try the case; and therefore its judgment is reversed, and the cause remanded, with instructions to dismiss the suit.

Reversed and remanded, with instructions.
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author: SWEARINGEN, J.

text:
    RADICKE v. RADICKE.
    (No. 6102.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 27, 1918.)
    1. Habeas Corpus <&wkey;99(3) — Custody op Child.
    In a controversy between the mother and the paternal grandfather of the child on habeas corpus proceedings, the court will award custody for the best interest of the child, even though the mother is not an immoral person and has not transferred custody 'by an instrument in writing.
    2. Habeas Corpus <&wkey;99(3) — Custody op Child.
    Whether it is to the interest of a minor child that its custody should be given to the mother or paternal grandfather is a question of fact in the first instance for the trial court.
    3. Habeas Corpus <&wkey;85(l) — Custody op Child — Evidence.
    Evidence held to show that it was to the best interest of a minor child that its custody should be given to the paternal grandfather instead of the mother.
    Appeal from District Court, Karnes County; Covey C. Thomas, Judge.
    Petition by Josie Radicke for habeas corpus against Gustav Radicke. Fl-om a decree denying her possession of her child, petitioner appeals!
    Affirmed.
    J. F. Murray, of Runge, for appellant.
    Williamson & Klingemann, of Karnes City, for appellee.
   SWEARINGEN, J.

Josie Radicke brought this action by writ of habeas corpus to- recover possession of her minor child. The case was tried before the court without a jury. By the decree the care and custody of the child was awarded to' appellee, who is the child’s paternal grandfather.

Appellant assigns as error that the judgment is contrary to law and not supported by the evidence, in this, that the.overwhelming weight of the evidence shows that the appellant never, by writing or otherwise, transferred or agreed to deliver the custody of her minor child to appellee, which assignment is submitted as one proposition. The other proposition made under this assignment is that, conceding that appellant did agree to relinquish the care and custody of the child and did agree to give it to ap-pellee, nevertheless appellant should prevail because of the absence of evidence that she is an improper or unworthy person to rear and control her child.

In our opinion, to support the judgment it is not necessary for the evidence to •show a transfer of the child in writing or otherwise, nor is it necessary that there be evidence that the appellant is an immoral person. The sole and only consideration, as stated by Chief Justice Fly, is:

“The child ‘is entitled to that home and environment which will probably best promote the interest of the infant.’ ” Schneider v. Schwabe, 143 S. W. 265; also, Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 196.
“Matters of this character are questions of fact to be determined, in the first instance, by the trial court.” Schneider v. Schwabe, 143 S. W. 266.

In the case at bar the trial court determined the. question of fact to be that it was to the best interest of the child to remain in the custody of the grandparent. If there is evidence to support this conclusion,. this appellate court will feel constrained to abide that decision.

In the present suit, it is admitted that the child is now in the care and custody of the appellee, the grandfather; that appellant acquiesced in this situation at first and for some time thereafter. The evidence concerning the relative advantages of the two homes offered for the cliild is that the appellee, the grandfather, is able and willing to give the child all the necessities of life, nourishment, clothing, and an education. The paternal grandfather and mother have no young children in their home save this child, but have an abundance of property available for maintenance of the home. They are rearing the child with love and affection, giving it permission to visit and be visited by its mother. On the other hand, the undisputed testimony of the mother is that she is without any means to even feed the child; that she, herself, with four other minor children, are living in the home and subsisting upon the bounty of Mr. Milam Brown, her father, who has a family of eight children of his own in addition to the appellant and her four minor children to support out of his wages supplemented by a very meager income. There is evidence that Mr. Milam Brown is cheerfully willing to share his humble home and last dollar with appellant and her little ones, but that Mrs. Brown said the children would be sent to an orphans’ home.

This evidence and other testimony relative to the environments of the two homes offered the child will support the judgment of the trial court that the child’s best interest will be subserved by leaving it in the home, care, and custody of appellee. We will not disturb the finding of this fact, supported by this evidence. Dallas v. Emerson, 36 S. W. 304; Sparks v. Hall, 29 Tex. Civ. App. 177, 67 S. W. 916.

The assignment is overruled, and the judgment is affirmed.
      —.ffnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    LIVE OAK COUNTY et al. v. WEST.
    (No. 6161.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 6, 1918.
    Rehearing Denied Dee. 18, 1918.)
    1. Appeal and Eeeor <§=>907(3) — Absence op Statement op Fact — Evidence—PeesumpTION — SUPFICIENCY OP PETITION.
    Where an answer was filed and hearing had, resulting in judgment for plaintiff, and no statement of facts was brought up on appeal, it must be presumed the evidence supported plaintiff’s allegations and did not support the pleaded defenses, and the judgment must be affirmed if plaintiff’s petition states a cause of action.
    2. Highways <@=>29(5), 30(4) — Location op Road — Application and Notice — Sufficiency.
    An application and notice of intention to establish a highway, leaving its termination to be fixed at any place along a line of more than 1,000 varas, are not sufficiently definite to comply with Rev. St. 1911, art. 6875, and to give jurisdiction.
    3. Highways <§=>53(2) — Location op Road— Oedee Establishing — Desceiption op Location.
    An order, though made on court’s own motion to establish a new road, the description therein locating the road’s termination at any point in a line of more than 1,000 varas, is fatally defective, since the statutes do not lodge, in the jury of view, discretion to determine where the road shall end.
    4. Highways <®=s>38(1) — Establishing Road —Notice op Peoceedings.
    Where the court’s order states that the jury of view is to lay out third-class road described in application and later refers to it as second-class road, held, that the order was for a second-class road, and that, where jury’s notice referred to the order, the owner had notice of class of road burdening his land.
    Appeal from District Court, Live Oak County; F. G. Chambliss, Judge.
    Action by George W. West against Live Oak County and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    John D. Hartman, of San Antonio, and T. H. Miller, of Oakville, for appellants.
    Denman, Franklin & McGown, of San Antonio, and Dougherty & Dougherty and G. C. Robinson, all of Beeville, for appellee.
   MOURSUND, J.

This is an appeal from an order granting a temporary injunction restraining Live Oak county and the commissioners’ court of said county from opening up a road through the premises of appellee.

The facts upon which plaintiff based his prayer for relief, as deduced from the petition and exhibits thereto attached, are as follows; On April 10, 1918, a petition was filed, praying for a public road of the third class, 30 feet wide, beginning at the termination of the iBartlett Ranch public road, where it intersects the northwest line of the Bartlett Ranch on the Nueces river, and ending at the north or northwest side of the town site of George West. Notice that such petition would be filed had been duly given. On April 10, 1918, at a regular term, said application was heard, and an order entered reciting that the said application came on to be heard, and, it appearing that notice had been given as required by law, it was ordered that certain named persons were appointed a jury of view “to lay out, survey and describe said road,” and make report at the next .term of court. The order describes the beginning and terminus of the road in the same language as the petition. At the end of the order the statement is made, “it being contemplated that said road shall be a second-class road, being 40 feet wide.” In June, 1918, a majority of said jury of view caused to be published in a newspaper of Live Oak county a notice addressed • to the plaintiff and others, all nonresidents of said county, notifying them that they would proceed, as a jury of view, by virtue of an order of the commissioners’ court of said county, to lay out and survey a road, describing the same beginning point as stated in the petition, but naming only the northwest side of the George West town‘site as the terminus. The notice stated that the road would be laid out on July 12, 1918, and that at the same time they would assess the damages, if any, claimed by tbe parties to whom tlie notice was directed, incidental to tbe opening of said road, and that a statement of said damages might then be presented. This notice did not state the width or class of the road to be laid out. On July 15, 1918, the commissioners’ court entered an order approving the report of the jury of view, and establishing the road in accordance with such report, classifying the road as one of the second class, and directing that it. be opened and worked, and that it should be 40 feet wide. The order recited that no claims for compensation had been presented to the jury of view or the court, and that therefore no compensation was allowed.

Plaintiff described the parcels of land owned by him which were appropriated for the road according to the report of the jury of view, and alleged at length the injuries he would sustain if the road was opened up across his land.

As grounds for an injunction, he urged:

(1) That the application for the road and the notice concerning said application failed to describe the terminus of the road, other than to state that it should end at the north or the northwest side of the town site of George West, and that such description was wholly insufficient for the reason that said town site is laid out so that there is no north side, the lines running so that either of the two north boundary lines might be intended as the north line, and besides each of said lines was over 1,000 varas long. That therefore the court acquired no jurisdiction to consider said application, and the order granting the same was in violation of the statute and of plaintiff’s statutory and constitutional rights.

(2) That the application and notice and the order appointing a jury of view provided for a third-class road 30 feet wide, and the jury of view laid out a second-class road 40 feet wide, and their report to that effect was approved, and a road of that character ordered -opened up by the court. That thereby an additional servitude and burden was placed upon plaintiff’s land, and more of his land was appropriated for public use without compensation than was sought by such application of notice.

An answer was filed, and a hearing had, but no statement of facts has been brought up. It therefore appears that, if the plaintiff stated a cause of action, we must sustain the order of the court; for it must be presumed in support thereof that the evidence sustained plaintiff’s allegations, and that it did not sustain any defense pleaded by defendant.

The application and the notice of intention to file same were defective, in that the description of the terminus of the proposed road was not sufficiently definite to comply with the statutory requirement that the termination of the road must be specified. Article 6875, R. S. 1911. It leaves the termination to he thereafter fixed at any place along a line more than 1,000 varas long. Such application and notice were insufficient to give the commissioners’ court jurisdiction to grant the application. Kelley v. Honea, 32 Tex. Civ. App. 220, 73 S. W. 846; Cator v. Hays, 122 S. W. 953. It may be, however, that as the court had the power on its own motion, where it is deemed necessary, to open new roads, the want of a proper application and notice should not be held jurisdictional, even though the court did not purport to act on its own motion; but even if this be conceded, it appears to us that, as the order of the court contains the same description as was used in the application, such order is fatally defective.' It is not contemplated by our statutes that the discretion of determining where the road shall end shall be lodged in the jury of view. As the notice issued by the jury of view l'efers to the order of the court for description of the proposed road, it is also insufficient in law. The proceedings leading up to the laying out of the road not being in compliance with our statutes, it appears that the plaintiff was entitled to the injunction as prayed for.

The order of the court is somewhat ambiguous, in that it states that the jury of view is appointed to lay out and describe “said road,” referring to the road described in the application, which was a third-class road, 30 feet wide, and at the end of the order the. statement is made, “it being contemplated the said road shall be a road of the second class being 40 feet wide.” We are inclined, however, to the view that the order should be construed as one for a second-class road, 40 feet wide, to be located as described in the petition, and that being the case, as the notice given by the jury of view referred to the order, and the owner had. opportunity to know the class and width of the road to be laid out, it appears there is no merit in appellee’s contention that he is entitled to the injunction on the ground that the order approving the report and ordering the road opened imposed a greater burden on his land than he had notice of.

In view of the defect pointed out with respect to the description in the proceedings preceding the laying out of the road, we hold that the injunction was properly issued.

Judgment affirmed.
      <S=a>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    FERGUSON et al. v. SMITH et ux.
    (No. 7952.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 19, 1918.
    On Rehearing, Dec. 7, 1918.)
    1. I-Iomestbad &wkey;>167 — -Segbegation oe Pabt —Lot on Which House was Built.
    Where husband and wife, having homestead on three lots, conveyed one lot to wife’s sister to llave house built on it to rent, other part of lots being sufficient for homestead and occupied by husband and wife as such, lot on which house was built was segregated as part of homestead, and lost character, and mechanic’s lien attached.
    2. Homestead &wkey;>177(2) — Conveyance of Homestead Lot — Erection of House — Es-toppel.
    Husband and wife, who conveyed lot, part of homestead, to wife’s sister to have house. for rental purposes built, constituted wife’s sister their agent to act in executing lien -agreement with builder, and in fixing liens against lot, and as against mechanic’s lienor and successors are estopped to assert lot was their homestead.
    Appeal from District Court, Dallas County ; E. B. Muse, Judge.
    Suit by T. G. Smith and wife against Hugh TV. Ferguson and others. From judgment for plaintiffs, defendants appeal.
    Reversed, and judgment rendered for defendants.
    Cecil D. Simpson and Monta R. Ferguson, botli of Dallas, for appellants.
    Muse & Muse, of Dallas, for appellees.
   RAINEY, C. J.

The appellees brought this suit against appellants to remove cloud from title to a certain lot of land, to cancel a certain deed to said lot executed by them to Emma V. Price, now deceased, and to cancel a certain mechanic’s lien and notes executed by said Emma Price. Appellees alleged that said lot was their homestead and that said deed was made for the purpose of authorizing the said Emma Price to improve same by building a two-story house and to be re-conveyed to appellees.

Appellant W. F. Sterley answered that he was the duly qualified administrator of Emma Price, that she owned said lot and had expended about $4,000 in placing improvements thereon in good faith during her lifetime, in the payment for -which the liens and notes sought to be canceled had been executed by her, and prays for judgment foreclosing lien. Sterley also filed a cross-action- setting up that appellees were in possession of said premises and had been since the death of said Emma Price,* and prayed for removal of cloud cast thereon by reason of said possession. He also ashed that the Lingo Lumber Company be made a party, and alleged a valid execution of all the liens, bonds, notes, etc., sought to be canceled, alleging ownership thereon in himself for a valuable consideration paid in good faith and without notice of the claims of appellees. Sterley sued out a writ of sequestration* and appel-lees filed a replevy bond and retained possession.

The case was submitted on special issues, and upon the return of the answers of the jury thereto the court rendered judgment for appellees.

The evidence shows that appellees had a fee-simple title to the lot of land in controversy, the same being the separate estate of the wife. In October, 1012, the wife being desirous of building a house thereon, she, joined by her husband, executed a conveyance to the lot in controversy to Emma V. Price, her sister, with the understanding that the said Emma V. Price would procure the construction of a two-story dwelling thereon, and after the completion thereof she was to convey said lot back to her sister, Helen Smith.

In pursuance to said understanding, the said Emma Price, with the consent and knowledge of Helen Smith, contracted with one Hundley for the erection of said house on said lot for the sum of $4,015, and executed certain notes and liens to secure the payment of same. Hundley was informed of the understanding between Helen Smith and Emma Price about the object of conveying the property to Emma Y. Price, and of her reconveying it to Helen Smith. This information was conveyed to Hugh W. Ferguson, who bought of Hundley the indebtedness, and Ferguson was the agent of Sterley for whom he purchased the obligations; hence there was no innocent purchaser in obtaining said obligation. Emma V. Price died soon thereafter and before she ever reconveyed the property to Helen Smith.

Appellants insist that under the evidence the court erred in not instructing the jury to find a verdict for them, in that the evidence clearly shows that the lot was subject to the mechanics’ lien.

The first proposition submitted by appellants is:

“The land in question was not a part of ap-pellees’ homestead at the time the liens which are.sought to be canceled were executed; that is, if when appellees executed and delivered the deed to the lot in controversy to Emma Y. Price for the purpose of having the said Emma V. Price borrow money thereon with which to erect a house and improvements thereon, to be rented out, and said purpose was carried ont and there remains out of appellees’ whole tract of land an adequate homestead for appellees, then the lot so conveyed was by said acts of appellees segregated from their original homestead, and their homestead rights therein were abandoned; and said abandonment and segregation date from the execution and delivery of said deed to Emma V. Price.”

TVhen the conveyance to Emma Y. Price was made by appellees for the purpose of having improvements made, appellees had their homestead on lots 1, 2, 3, block 43. The lot in controversy is a part of 1, 2, 3, block 43. The object of having said house built on said lot was for the purpose of renting it, the ottfer part of the lots being sufficient for homestead purposes and occupied by appel-lees as such. After its completion it was rented for a while, and appellees on or about June, 1915, occupied it as a home.

By the acts of appellees said lot was segregated as part of the homestead, and it lost its character as a homestead, and said mechanic’s lien attached to said lot and it became subject to the payment of appellants’ claim. Town Co. v. Griggs, 93 Tex. 451, 56 S. W. 49; O’Brien v. Woeltz, 94 Tex. 148, 59 S. W. 535, 58 S. W. 943, 86 Am. St. Rep. 829; Wurzbach v. Menger, 27 Tex. Civ. App. 290, 65 S. W. 679; Wynne v. Hudson, 66 Tex. 1, 17 S. W. 110.

Another proposition under said assignment which we think ought to be sustained is No. (9), which is as follows:

“That in executing and delivering their deed dated September 30, 1912, to the land and premises in litigation to Emma V. Price, now deceased, and in agreeing to and permitting and directing the improvements provided for in the mechanic’s lien contract with J. Bunyan Hund-ley, dated October 20, 1913, to be erected on said land and premises, and accepting, using, and enjoying said improvements, that plaintiffs thereby constituted the said Emma V. Price their agent and attorney in fact with full authority under the law to act for them in executing the mechanic’s lien agreement and in fixing the liens against said land and premises held by the defendant, and are now estopped from canceling said liens as against defendants.”

The conveyance by appellees to Emma Y. Price was made for the purpose of improving the lot in controversy that it might be rented. This purpose could have been accomplished by the appellees without resorting to the conveyance to Emma V. Price. They, however, saw proper to resort to the conveyance, and. by it the authority was given to Emma Price to construct a house and thereby create a mechanic’s lien for the payment of the indebtedness so created. Appellees at the time were acting in good faith. Parties furnished money for the improvements, believing they were secure in so doing, and appellees are now estopped from asserting that same was their homestead.

We see no difference in so giving a deed for the purpose of making the improvements than in making a straight power of attorney for the accomplishment of the same purpose. In conveying the lot to Emma Y. Price, the very object the appellees had in view was carried out, the house having been built and rented, but the parties furnishing the money have not been remunerated.

The judgment is therefore reversed, and judgment is here rendered foreclosing the mechanics’ lien in favor of appellants.

On Rehearing.

In rendering judgment in this case we erred in assessing against appellees and their sureties on their replevy bond the value of rents of the residence after it was replevied by them for which appellees were not liable.

Said judgment is set aside in that respect, and judgment is reformed so as to eliminate that part of the judgment in relation to rents so assessed, and the judgment will be in all other respects as heretofore rendered.

The motion is granted in part and overruled in part.

       — ,T?nr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <i&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes