135 S.W. 705 | Tex. App. | 1911
This is an original application to this court on the part of the relator, Jefferson, for a writ of mandamus to compel the Honorable J. C. Scott, judge of the Twentieth judicial district, and one of the respondents herein, to vacate and set aside a judgment of dismissal heretofore entered by him and to proceed to trial on the merits of a certain case in the district court of Milam county, in which the relator had brought a suit against the respondent J. W. Hudson, seeking to contest said Hudson's election to the office of chairman of the Republican county executive committee of Milam county, on the ground of fraud and illegality in a primary election held in said county on July 23, 1910.
We take the following statement of the case as made by the pleadings from respondent's brief, as the same seems to be correct: There are two factions of the Republican party in Milam county; the relator belonging to one faction, and the respondent J. W. Hudson belonging to the other. Each of these factions held on July 23, 1910, its precinct conventions, and on July 30, 1910, its county conventions. One of these factions in its county convention on July 30, 1910, declared respondent J. W. Hudson elected chairman of the Milam county Republican executive committee, and on said date a certificate of such election of the said respondent was issued. The other faction declared relator elected such chairman, and a certificate issued accordingly to him. On October 6, 1910, 68 days after the issuance of the certificate of respondent Hudson's election, relator filed suit in the district court of Milam county against said respondent for title and possession of said office, predicating said suit upon fraud and illegality on the part of respondent Hudson, alleging that said Hudson had usurped said office, styling himself plaintiff, and said Hudson defendant. Thereafter, on the 27th of October, 1910, 89 days after the issuance of respondent Hudson's certificate of election, relator filed his first amended original petition, seeking to contest said election at which respondent was declared chairman, and as grounds therefor alleged fraud on the part of said Hudson. On this amended petition the case went to trial before the respondent the Honorable J. C. Scott, judge of said district court. Respondent Hudson presented a general demurrer and several special exceptions to the sufficiency of the relator's cause of action, as set forth in his said amended petition, which exceptions the court heard and sustained, whereupon the case was dismissed.
It seems to be the contention of relator, presented both in his brief and in argument on the hearing, that, notwithstanding the fact that the court sustained respondent's demurrers to his petition and dismissed the case, he is, nevertheless, entitled to a trial on the merits. We disagree with relator, for the reason that the judgment sustaining the demurrer and dismissing the case was final, just as much so as though there had been a trial upon the merits, and a finding in favor of respondent. The office of a "demurrer" is an admission of the facts as alleged, but declaring them to be insufficient upon which to predicate a cause of action or assert a defense; so that the court in passing thereon in this case, in effect, held that the facts set forth in relator's petition were insufficient to sustain his cause of action; and hence the conclusion on the part of the court that the same should be dismissed was, in effect, a finding upon the facts in favor of respondent Hudson.
A mandamus will not lie to an inferior court where the duty to be performed requires the exercise of judicial discretion. Here the trial court was called upon to exercise its judgment as to whether or not the petition of relator set forth a good cause of action. This involved the exercise of judicial discretion. Judge Willie, in Ewing v. Cohen,
It appears here that the court below proceeded with the cause to final judgment. In doing so it exercised a judicial discretion, and it is not the subject of review by mandamus. It is said in 26 Cyc. 127, that "a mandamus will not be granted for the purpose of review, nor is it available as a substitute for an appeal or writ of error." In v. Matlock Smith,
The object of the present suit is not merely to force the court to proceed with the trial, but to compel it to proceed in a certain way, which this court has no right to do. It would, in effect, be substituting our judgment for that of the trial court were we to undertake so to do. In Aycock v. Clark,
One of the exceptions urged and sustained by the court below to the plaintiff's petition was that the same was not filed within 10 days after the declaration of the result of said conventions. While we do not undertake to decide the point presented, because it is not necessary to a decision of this case, still we are inclined to the belief that the same is well taken. Section 141 of the Terrell Election Law (Acts 29th Leg. c.
While the act itself does not, in so many words, require that a suit contesting the election of a chairman of the county executive committee should be filed within 10 days from the issuance of certificate, yet it does provide that this must be done within said period, if the contest is for a state, district, county, precinct, or municipal office. So, by analogy at least, it would seem that the law would prescribe the same limitation for the filing of such suits as the present one, since it is the policy of the law to determine all such contests as soon as practicable after they arise.
Irrespective of whether the trial court acted correctly or not in sustaining the demurrers and dismissing relator's suit, we think it is our duty, under the law, to refuse to issue the writ of mandamus as requested, for the reasons heretofore indicated, and it is so ordered.
Mandamus refused.