120 S.W.2d 605 | Tex. App. | 1938
These proceedings, as styled and numbered, supra, reflecting as they do the contest between Clifton Anderson, relator here, and A. B. English, A. A. Aldrich, as Chairman thereof and all other members of the Democratic Executive Committee of Houston County, and J. Dawson Robbins, as Clerk of Houston County, as respondents, over whether or not Anderson or English had been entitled to the nomination of such Democratic Party for county commissioner of Precinct No. 4 of Houston County at either of the two primaries held by that party therein on the 23rd day of July and the 27th day of August of 1938, respectively, have been, upon this court's own motion, consolidated and heard as one proceeding by it.
The first one, cause No. 10,864, is an appeal by Anderson from the refusal of a temporary injunction and certain other mandatory relief sought by him, against all of the respondents, the material part of which is this: *606
"It is therefore, ordered, adjudged and decreed by the Court that the temporary restraining order heretofore granted should be, and the same is hereby in all things dissolved, and the temporary injunction and mandatory relief prayed for by Plaintiff is in all things denied.
"It is the further order of this Court that the Democratic Executive Committee of Houston County, Defendant herein, be and is hereby directed to proceed no further upon the contest filed before it, and described in Plaintiff's petition, until legal notice, as required by Statute, is had upon the Contestee, in said action before said Committee.
"All relief sought and not herein specifically granted, is hereby denied.
"It is further ordered that the officers of Court recover of the Plaintiff, Clifton Anderson, and the Defendants, A. B. English, the costs incurred by each, respectively, for which execution may issue.
"Sam Holland,
"Judge Presiding."
Of the other consolidated proceedings so styled and numbered, one constituted an original application by Anderson to this court for a writ of mandamus requiring the respondents to recognize and certify him as such nominee for the commissioner-ship indicated, another an application by him for temporary restraining-order from this court awarding him temporary relief effective until his appeal from the refusal of the temporary injunction in cause No. 10,864 should be determined by this court, which it duly granted on September 30 of 1938, while the last one of them constituted a motion from the respondents to dissolve the temporary restraining order so issued by this court.
Such appeal from the refusal of the temporary injunction below having been advanced and heard here pursuant to R.S. Article 4662, under which that cause had been accelerated into this court, has been considered upon the transcript and statement of facts, affidavits, and other evidence and proceedings submitted therein, as well as upon oral arguments for both sides; whereas the mandamus application and motions have, as indicated, been treated as part of the same cause.
Subject to the exception and qualification hereinafter specifically set out, it is this court's conclusion that, at this late date, none of these proceedings having been filed with its clerk prior to October 3, nor argued before it until October 4 of 1938, although two of its judges had issued the restraining-order mentioned on September 30 upon ex parte hearing only, it cannot effectively entertain such proceedings longer, hence that they should all be dismissed from its dockets, on the ground that the subject-matters and things with which they deal have, within the meaning of the law, become moot and not susceptible of effective control by it — except in the single respect hereinafter so noted — for these reasons and considerations, to wit:
1. It is doubtless true that R.S. Article 3106 is mandatory, and requires the County Executive Committee to decide whether the nomination of county officers shall be by majority or plurality vote, and if the committee fails to decide, that the nomination of county officers shall be by plurality vote. Cliett v. Williams, Tex. Civ. App.
2. Appellees' pleadings urged a plea of estoppel against appellant for claiming that he had not waived any fault or irregularity of the County Executive Committee in not making its order for a majority vote for county officers earlier than it was in fact made. The trial court, in refusing to issue a writ of mandamus to the Executive Committee, must be taken to have ruled this issue against appellant and in favor of appellee. The evidence would support such ruling. And for the reasons given we are unable to say that appellant became the Democratic nominee for the position for which he was a candidate by reason of having received a plurality over his three opponents in the first primary.
3. Though the trial court dissolved, on September 15, 1938, the temporary restraining-order that he had granted appellant on September 10, 1938, and refused to grant appellant the temporary injunction he sought (and from which appellant has prosecuted his appeal to this court), he did use language in the temporary order which implies that he found as a fact that, with respect to the contest filed by appellee before the County Executive Committee, no service of citation had been made on appellant to require him to answer thereto, and that no waiver of such service had ever been made by appellant. The evidence was undisputed that no statutory citation (Vernon's Ann.Civ.St. art. 3148) had ever been served on appellant, and the evidence as to a waiver of citation was such that it would support a finding either way. An attorney appeared before the Executive Committee on behalf of appellant on September 3, 1938, and requested that the hearing be put off one week, until the tenth. It was with the knowledge and consent of appellant that the attorney acted, and he received the benefit of his action. There was no concealment practiced on the committee, for it was informed that such attorney had not received his fee, and would not act for appellant unless he did. But that did not prevent the relationship of attorney and client from existing at the time he acted for appellant. The facts would support a finding that, in agreeing to waive service, notwithstanding his avowal that he might not later represent appellant, that the committee was induced to set the contest over for the convenience of appellant's then attorney. Thereafter the attorney here representing appellant appeared before the committee, and, after stating that he was not waiving service, made a legal argument to induce the committee to certify his client's name as the nominee. He doubtless regarded himself as adopting to his purposes the fiction frequently employed in court of appearance by amicus curiæ. But it is a question of fact of whether appellant appeared by attorney and participated in the contest, even though he stated that he was making only a limited appearance. The court was justified in finding, for purposes of his temporary injunction, that there had been no waiver by appellant through his first or second attorney of service of citation to the contest. But, as indicated, the facts would support a finding that appellant had submitted to the jurisdiction of the County Executive Committee. Therefore, while the construction placed by the court on the participation of appellant's attorneys in the contest did not amount to an appearance or a waiver of citation, and was thus sufficient to support the court's order not to proceed further with the hearing until statutory service was had on appellant, it would support a jury finding to the contrary.
At the time the Executive Committee received notice of the temporary restraining-order they had certified appellee's name as the nominee, but had not delivered it. In fact the certificate of nomination had been signed only by the Chairman and thirteen of the committeemen. By force of the trial court's order the committee was bound not to deliver the certificate to the county clerk or to otherwise part with it. In defiance of this order, it appears that on October 1, the committee did place, or cause to be placed, in the hands of the county clerk, the certification of nomination. Accordingly the clerk is ordered to return the same to the Chairman of the County Executive Committee forthwith, and the Chairman is ordered to receive it back.
5. If the appellant participated in the contest by either of his attorneys, he waived service of citation, no matter if he still insisted he must have it. If he participated in the contest, the County Executive Committee had jurisdiction — unless there was not a quorum present. If we reverse the action of the trial court in refusing appellant the injunctive or mandamus relief he has sought, we will be forced to *608 remand the cause for trial on its merits. On a trial of its merits before a jury — were there time for such a trial — the jury might find that appellant had waived service of citation. As there is lack of time for such a trial, because not later than October 10, 1938, the county clerk must post the names of the nominees, we must hold the cause now moot, dismiss the appeal, dismiss the two motions filed therein, and refuse the application for writ of mandamus; it is accordingly so ordered.
PLEASANTS, C. J., absent.
