*1 Tex.) PETERS JOHNSTON t. 911 (260 3.W.) jurisdic jurisdiction, is also time. effluxion such creased will retain court adjudicate damages by defendants, such- true, continuing tion to as such claimed appeal may complainant may as damages accruing pending during be suffer county pendency prior court suit and sued and recovered the final They support claim trial such.appeal, thereof. cite in the total amount of this con Hegman (Tex. county the tention the case of v. Roberts court must not exceed ed in the jurisdiction App.) $200, 201 In of its Civ. 268. Siensheimer v. sum of limit S. W. 228; judgment (Tex. App.) cases, recovered surance Co. Civ. 157 W. such and the S. (Tex. App.) & Klabunde Worth v. 715; sum. Fort Hardware Co. Civ. must not exceed said 284, Stallings Underwood, (Tex. Ry. 182 S. W. 100 Tex. Adair v. Civ. Co. v. D. C. 286, 806; Sulzberger App.) 140, Rep. Hille Rail 165 W. v. St. S. 99 S. W. Am. (Tex. App.) way App. Crenshaw, sustain Civ. also S. W. v. 51 Tex. Civ. .by Having such contention. con action asserted reached the 117. cause of S. W. The county without cross-action in clusion in their amended court defendants the jurisdiction adjudicate appel county its in this case to exceeds court damages jurisdiction. exceeding $200, original For claim ren its late but also judgment claim, entertaining said der sum of the court in error .the on.such judg Supreme has, rendering and that our ex Court cross-action and amended pressly, effect, held, judgment revers least so are will we ment thereon such unwilling lodged by rule to follow announced original de The cross-action ed. juris cases. said apparently being within the fendants judgment justice court we will diction versed, county cause is remanded to defend court to dismiss instruct county inconsist- entirely. court for trial not rule Such is the ant’s cross-action plead original ent herewith. reversing in ings asserting cause action over which jurisdiction, but had no trial court judgment. attempted to render which it Dispatch Rainey, Tex. (No. 7066.) Co. v. Fruit v. PETERS. JOHNSTON 281; Bryant, v. Turnbow 232 S. W. Appeals (Court Texas. San An- Civil 563, 566, 686. Plaintiff’s ex 181 W. S. Tex. On tonio. Jan. 1924. Motion ception cross-action amended defendant’s Rehearing, 26, 1924.) March county pleaded should sus as @==>181— properly permitted 1. Struck ballot Elections tained, should be defendants against though candidate, line pf original cross-action their reassert to the through name, through pass ticket justice lodged date opponent’s name written blank when another long so same amount or to amend the column. controversy is within in such amendment 2969, permitting Rev. art. Under St. jurisdiction county appellate court. by running" pencil straight ticket of a again continuing damages claimed pen If through intended other tickets not straight specific rate, asserted the cause of action a ballot which line through party ag drawn ticket on though tee’s the full limited to time that be so printed, which contestee’s name was alleged damages gregate will exceed pass such line did not contes- jurisdiction court. v. McDannell extend to the center did not 177; G., & Cherry, Hufstutler v. C. 64 Tex. column, for con- App.) ; (Tex. Ry. 216 S. Civ. W. F. Co. S. testant, the latter’s name was (Tex. App.) Taylor Civ. S. v. Lee W. space appropriate the voter blank (Tex. App.) 909; column; conclusively Civ. indicating Newbauer Miller v. in another thus 974, 975; Braggins Holekamp intent. voter’s v. W. S. 57; Ry. App.) S. W. A. & A. Co. S. P. Civ. @=» party as to 181—Ballot 2. Elections Barnett, App. 498, 27 Tex. 66 S. W. Civ. v. names of con- column was testee stricken and Ry. 476; G., C. F. Ham S. Co. v. scratched held not to be or contestant Burke 231 S. W. Civ. rick counted. App. M., Adoue, 23 W. Tex. Civ. S. v. contest- Ballot's App. Ry. Hughes, Tex. v. Co. K. & T. 436, appropriate had been written in at ant printed place, 98 S. con- but on which the name of that, where, Republican nominee, testee, in this contend who was Defendants scratched, sought nor the column not been damages case, recovered Stats, stricken, could not be counted Rev. art. continuing con- nature so that of a candidate, during pendency of accrue tinue article view of jurisdiction tested suit, damages as such have accrued at amount @=>40 Purpose of give 3. Elections ef- filing petition or cross-ac- the time tion, voter. to>intention of fect may be, asserting case dam- of the law to It is the acquired rightfully ages, voter. intention Key-IN topic umbered and KEY-NUMBERin
other eases see Indexes *2 (Tes. 260 SOUTHWESTERN REPORTER only @=>180(6) <§=>305(5) 4. Elections man 10. one al- Elections of —Where —Consideration leged! missing urged particular particular pn could not be of office, candidate for appeal, they showing in absence of conclusive surname ballots with similar were, missing. of be counted him. that candidate to appeal Where the record on conclusively an election only particular name one man. of a Where contest did not that a certain office, is a all ballots will candidate for number of ballots of votes for were contestant counted for relation between the when there is clear that candidate actually missing, they or that some them or of appearance sound of or among were him, those counted the surname didate. of can- and that alleged, appellate court could not alleged missing consider the ballots for the declaring of the election under (6) 5. Elections held entitled —Candidate Rev. St. art. 3063. votes, notwithstanding misspelling of name of, erroneous, omission or or initials. <@=>305(6) 11. Elections es» héid —Contestant only candidate Where contestant was the topped missing urging consideration of sheriff who bore office of haliots, stipulation approved view of “Johnston,” he Peters were trial court. pre- candidates for that would j stipulation between contestant ap- sumed that where a voter into wrote contestee, provided' approved the trial propriate place on the ballot “John- the name ballots, being that certain ballots “to ston,” ap- or other a similar for,” face, be accounted show on their in con- pearance sound, such voter voted testimony introduced, nection with be as else, regard- that candidate some and not one stipulated, alleged “missing” a consideration of misspelling less of of urged appeal ballots could to discred- initials, wrong omission of of use ones. results, agreed parties it that nor could the discredit stipulation by showing that certain ballots @=>190 fully 6. Elections marked duplicate —Ballots bore numbers or were not voting, purposes of scratched for usual especially agreement, under the appearing to have been abandoned stipu- the ballots to be accounted under voters, for, classified, lation were in fact accounted counted. definitely assigned stipulation. under the mutilated, Ballots certified as which were implied not mutilated of from normal use up- <@=>295(1) Policy 12. Elections of law to — word, fully marked which were not hold declared of results purposes voting, scratched for the usual of convincing clear and evidence of erroneous appeared to have' been as a abandoned sult. voters, counted, ballot should not policy uphold the ex- of law of; especially presumption in view the raised cases; declared results of elections in -all certificate of mutilation that cept convincing where there is clear and evi- voted. of dence an erroneous result. @=>176 7. Elections. number without —Ballot <@=>298(3) Elections to be declared —Not be counted. - except upon showing people deprived void of ' 3005, 3012, Rev. In view St. of arts. privilege expressing polls. of ballot which had no number should not have An election should never be declared void been counted. ordered, except and another one cases where people deprived shown <§=>295(I)— 8. Elections Evidence of nonresi- privilege expressing their will presump- dence held insufficient to overcome polls. validity tion of of vote. <@=>298(1) Duty pro- 14. Elections of court Evidence insufficient to warrant tecting public from, thrusting up- rather than rejection ground thé ballot 'on.' it, expense special and distractions voter was not a resident elections. presumption which favor of view of the he paramount public The interest of the validity the vote. individuals, public policy the interest of imposes upon duty protecting courts @=>305(6) public Elections from, thrusting upon —Defective than rather would, appeal, it, result expense, distractions, discarded unchanged. spe- and strife of cial elections. Where, the ballots which did not com- if all ply mandatory provisions with Rev. St. Appeal Court, from District Nueces Coun- 3001, 3005, arts. in that did ty; Hopkins, Judge. W. B. bear the and were numbered, discarded, not not be result would Election W. contest between P. provision affected, the of article contestant, George Peters, contestee. providing for deduction such ballots from From a af- district cast, tte totals of the for which and firming judg- with certain modifications the 3063, directing article voters, another election if the commissioners’ ment contestant allowed to would appeals, assigning Af- contestee cross-error. materially changed result, inap- have- plicable appeal. firmed. to aid!contestant on cases see same topic other and KE Y-N @=>For Key-Numbered UMBER ail and Indexes which the court’s become—for 1,455. priate place, to court ed 10, the 149. ted'to scribed and 11 to “no court have been formal nominee of the testimony introduced, tion, ballot at the ity oyer at the instance agreement was. The the voter to (a.) (e) on November (Í) (d) ville, for ed in favor didate as a to vote for Tex-J turns to bo elected (b) (o) publican Childers, Dougherty, However, [1] At the Jefferson SMITH, Ballots Ballots on For Peters For Johnston . Ballots Ballots on Peters, Johnston, Corpus This questioned court 152 printed was Peters ers not voted written struck, but scratched, nated as “Johnston — W. P. As has Johnston’s name written as follows: 21 to Of the 152 making Total correctly assigned 260 S.W.—58 ’ follows: “no. P. "questioned” ' for, ticket missed Peters’ appellee. nominee, conclusion on which declared, by elected Timón, that “of paragraph (c) above) missed” . J. votes” Johnston. Democrat, but, consequence Christi, D. 60. Johnston *3 Dougherty . write Johnston’s San scratched”.1. on the official on their Johnston, .1,445 Johnston, 1,43S; time of which Johnston’s no 7, 1922, George Peters, the Re- as hereinafter which Johnston’s name designated designated n questioned ballots, were submitted votes.” We have the line but Peters’ Peters, At Todd and a candidate for parties To Johnston finding Antonio, questioned parties was declared sheriff of shown, neither to be “no Republican parties 3,189 face, in left 39 voting. Peters’ thus The latter who was Republican struck— it was then, general Corpus majority party, the trial the The entire and thus- as "Johnston —Pet- finally toas the commissioners’ was be as follows”: Douglas, 68 to could E. “no contested as he was ballots to Tari ballot, concede that 104 ballots name, fconnection entered will be ballots submit- B. Nueces appellant. explained, name was- votes”. here attacked ticket necessary in its submitted ton, Christi, votes”; Johnston, adjudged sheriff, "Ward, to7 JOHNSTON v. PETERS through was instead were cast the totals remaining name was as to Peters on which the desig- Carter agree group these 39 court upon 45 was was parties, into not the Peters,, assign- Peters, render- county, Peters’ appro major- as to a can- votes. order with both, elec- Bee- and, (de 3,189 1,245 the pose. (260 ac- 121 125 104 s.w.) not been votes,” mandate of the ly shown, didate. vision intended to be voted. above, full name was ticket, notwithstanding ed their intention to vote struck, sively shown purpose to vote held. in another column left blank for that plainly indicated, however, most voters court decided column in which did not extend -to lee, We overrule this but should have been straight, all other distinct marked line appropriate cross-assignment It’ 104 the other name, should not have Peters, printed down as to is that mark, appellee’s name the column the names of the over to the left candidates. The name appeared upon the ballot ticket, “When Upon the ballots under consideration the [2] There was another class of much number, column. printed center of pass written in at Peters, ticket, extent , The intention of the voter It is pass through “marked which occurred about on which the name of as in rendering right and counted- them for neither can however, scratched, tickets on the full shorter opponent center and there candidates, may printed, directly Republican shall rule, and described in the case in the center of the voter did.- The other names thereon so that a of the names This was the condition of the contends that candidates printed in article thereon, the ticket on under consideration. appears been pass through run statute, so that a assignment and than thereof, names against straight the ballot column the official desires or the although the ticket cast. through being * * in article ticket was discarded appropriate place, counted voter pencil thus, the 104 ballots. The but ticket struck. The straight of both candidates on the ballot names of most followed “Geo. and must be misses and against almost flush with unscratched. Peters was thus appropriate place line no * average still line straight missed ” wrote plainly ballot, making such ticket not this ticket halfway Peters’ which paragraph statutory pro- vote these ballots Johnston center column, R. through” some of the error, appel- drawn down miss Peters’ as Peters,” pen being Peters had line printed, contention. ticket, the entire S., Johnston, no it, a ticket line did indicat- it was through column Peters’ conclu- n that— that —- drawn passes and In, votes. clear- plain down down here, pur- “no up but (d) an as so of REPORTER 260 SOUTHWESTERN on these here hereinabove usual ters herein. where the found “mutilated.” that tention of name will be counted there ance or sound have been place counted and these were ly Appellant’s voter were returned were think ballots were tilated and was the sheriff any has beem ance or action ballots will signed persons.” counted. 255 S. otherwise “Johnston” ever, class called whereby some' et clearly are one ballot shall not _[3-6] Some “Where [6]Ballots has pursuance seq.; writing person misspelled according similar incorrectly a normal use of that purposes of is a clear counted is a candidate that one there been held where .who other provision appellant, determined; sound, by the court fully Wright v. only applied candidates these ballots were incorrectly are included ballot for is to else, Johnston 17 voter wrote misspelled. candidate. Johnston’s often assignments giyen. omitted counted them C. bore to decide were only and 118 voters had of this 136, precinct names o£ all such ballots voter, ballot to their The trial marked or scratched for the overruled. J. candidate be counted for erred. relation were be elected court below as “no notwithstanding the surname “first is held given.. for voting, to eases for the wrong (cid:127) the name occurred one § in “mutilated,” having and for Johnston. presumption Marquis The court’s conclusion, 190, entirely, for an authorities among *4 refusing and such ballots that previously man given, or the or purport. McCrary, It is true two or into the between difficulty in correct votes, initials were complaining of the p. distinctive Of that office. those for the office tO'that as votes for Pe court, however, fhat and that candidate trial aof word, the 39 attacked similar “Johnston,” or appear office, transposed, or this to for more and rule Peters we calculations intention “Johnston,” appropriate is that his precinct' count mandatory, referred court, how Elec. 528 In this officers that particular to Appellant cannot Johnston, this, and excluded fact mu have and we appear to have which are implied become, appear initial” initials persons votes,” ballots in and ballot, is given. cited. § these were were And such such also up we has as in ,is be counted low. far as we presumption in independent group ed to vote evidence was lots were been er whom of the ing and which Johnston for found clearly shall not be made of the the findings apparently ed as cast. were in fact 6, appellant o<f39 precinct cordingly ballots were been abandoned ducted ever, ed. votes. inof those lots 73 lots counted for We have raises Besides, 61 votes, court’s of and 235 [9] [8] [7] Included also and fact, stated, precinct in now been same-group same him. Under the 235, These ballots are included The record and and Ballot no of 39 questioned precinct 15, votes, that.ballots is not precinct 391, precinct 13, showed group In each finding from those as were also requested the certificate mutilation the court 4 was finding precinct clearly or group, claims should have been have obviously had not opinion. the total included testimony -presumption precinct 'are challenges questioned ballots, 4, Peters, 1,455; Accordingly, examination of the precinct 4, Peters counted, majority, for contending counted as challenged that voted. not sufficient to overcome the disposed among that were disturbed these any in which he voted. favor of 39 ballots the one which had Johnston, on either ballots 53 and cast him. as a ballot precinct ballots heretofore among 13, precinct. thereon which were held found shows these the voter was in the totals manner in said one of a assigned inadvertence, Peters’ questioned able and this ballot It was of the claimed for Johnston. provisions 138 in of in Among this no by were submitted stated already that some those submitted they Johnston, cases, however, the for whom it shows in group 6 was cast to ascertain precinct findings their fach. These of the by appellant, but, ballot. Both precinct and 'vote, appellee, and, group questioned, precinct 14, detail, whereby, validity included disputed precinct have precinct each of the others Johnston,' by be a findings. 322, of 39 which no been count no number credited to record, Peters below, candidates the voters. ballot will as to bal appellant, the court 6, and have been de by disposed to be no resident of them number, precinct Accord will ac articles and 46 entitl count- surely group issue how they vot bal bal and and out be 1,- no In In so to Tes.) v. PETERS JOHNSTON (260 S.W.) provisions candidates, in either under the of article 3063. We were defective the two They very carefully particulars: (1) several following have of the contention, pre- questions out evolved of this the individual not hear place, election, provided for siding judge In the first which must be overruled. of the (2) show, conclusively, record does in articles least, ac- in articles that such number ballots were not numbered as were 3005, 3011, them, tually missing, they, number or some of and 3012. Of among votes, the remainder those counted and of were no ballots were 334 were shown opinion again cast for John- we are of the Johnston. And would be Peters. that to consider this contention go 150 for ston and agreement parties,' provided, in articles behind It is sig- effect, judge stipulated, presiding shall write his whieh it was were and which ified, that the nature for, only 3,189 issued accounted ballots to be before ballots to be voted, and in class- accounted them in fact voters agree- (italics definitely assigned in said is further article 3011 Appellee ours): insists that .ballots ment. included language agreement, and in this counting judges clerks shall fa- “The stipulate, agreement both seems to so signature themselves with the miliarize implication. For terms clear each ballot who writes name on clearly appellant reason, think no do we shall count ballots that n notbear his *5 unnumbered, signature complaining al- estopped are of the from now by if, signature judges, on examination the such comprising duplication leged of 33 forgery.” a is found! be to bearing duplicate many pairs of ballots very of was numbers. It purpose provided It is also in article 3005 questions sub- agreement limit to judges one of the shall “num- “ques- to the 149 the trial mitted to tioned” to spect voted; and in it has been ber the ballot” when number was reduced provided, article that “no bal- 3012 it obliged appeal. feel to 39 on We provided in lot which is not numbered ar- ” course, agreement. * * * Of and enforce this ticle shall be counted. any agreement not enforce this court would whereby provisions has been It held two sought to candidates- the individual statute, requiring of the that the ballots bear destroy the effect of lawful signature the bered, num and shall be illegal here we void But mandatory, and that ballots which agreement between are confronted do not number and bear such shall court, approved by parties,, the trial 227; McCrary, Elec. §§ be counted. ballots, being “to ballots that certain Connor, 1103; v. 86 Tex. S. W. State Gray for,” show, face, on their in be accounted 217; State, Tex. v. 49 S. W. testimony introduced, to be connection with App. Anderson, 41 Tex. Civ. Arnold v. agreement stipulated. If the 692; parte (Tex. Ex Anderson S. W. Cr. for,” 727; accounted and even Tucker, “all ballots to be S. W. v. Griffin by counted or returned elec- more than were App. 522, Shipman Tex. Civ. S. then tion officers commissioners’ App.) 199 Jones S. W. 329. v. certainly alleged “missing” may discard these But to does not purpose appeal, now be here for marshaled of this under affect discrediting agreed if, 3062, because, results. provisions And of article when stipulated agreement, in the the ballots to from the the candidates deducted totals face, respectively cast, for “show on be accounted their whom testimony majority article, introduced,” connection with said by be there- would stipulated agreement, be as further the increased to whereas like- parties may agree- now discredit that under ineffectual article wise by showing provides ment certain a sufficient number of ballots bore duplicate numbers, by deprived the election officers were not voters are as- signed agreement. privilege as, under the such voters [12-14] material- The found, “been allowed to would commissioners’ court result, ly changed judge votes, the court shall ad- after a canvas of the that Peters had void, prop- by majority the election direct the been in votes, elected of 60 to order er officers election. the recount in the district court it was again found that Peters had been so elect Appellant [10,11] ed; majority being placed contends that this time his missing voters were of 21 Johnston While our 45 votes. sions and conclu tried, and were and could was have resulted in ease a reduction of Peters’ that, majority, they change further contends be accounted do the result de though by ballots cannot be even commissioners’ clared the tri (as they assuredly be), designated cannot for Johnston yet, bunal ascertain such nevertheless, result, should be considered confirmed and and declaring long painstaking the election is, recount. , SOUTHWESTERN REPORTER «16 policy uphold ought be, of the law to bule while the train inwas held/ under motion jury. cases, the evidence for the the declared results of elections convincing except is dear and where there -Negligence &wkey;>l36(l4) jury. Question for In this result. evidence an erroneous Negligence, actionable whether or contribu- every case, tory, contention ordinarily even substantial question of fact for the contestant, jury. appellant, jiy made sustained, nó more nor less .than do we could &wkey;j2ll 4. Evidence of admissions —Evidence another, and election void order hold the party testimony former action ^ done, injuries cases never be to contributory too remote on issue negligence. people have been is shown that where it expressing prior plaintiff privilege their Where deprived accident occurred and trial had in in an action public polls. interest injury occurring for another evidence individuals, paramount interest prior of his admissions case as to imposes policy public courts injuries serious nature and continuance public duty protecting rather by jury too remote to be thrusting upon expense, dis- it than of contributory negligence going issue special tractions, elections. and strife of moving platform of a car make a hur- particularly in situations true stopped, is rendered ried exit whether attributable to the train issue already permeates present suffering part of his much bitterness injury. prior constituency concerned. duty, upon the face of our deemWe <&wkey;l02(5) diligence 5. New trial lack of —No reg- apparently result, uphold record, ularly failing inquiry party’s make of adverse machinery agents. ascertained claim purpose, and con- newly law for discovered evidence peeling whose existence banana the vestibule the district firmed platform, alleged to have been the cause affirmed. injury, plaintiff’s fall claim was that of Rehearing. necessary defendant, agents Motion for On diligence by plaintiff that he should claim of show that he *6 appellant’s motion Pending action agent applied to the claim mo- own rehearing, its preparing the defense to whether he ascertain affirmance, judgment tion, aside the facts set material associate knew cause, did not intend to or- the case which disclose submission as the as well requested the trial. resubmitted, and the case dered argument, <&wkey;l04(3)—Newly additional to submit evi- counsel discovered 6. New trial ability competent on much dence not cumulative done with held have however, issue. concluded, haveWe consideration. after careful inju- personal passenger’s In a action reconsideration, with some by slipping alleged ries, on to have been caused original hesitancy, to confirm coach, peeling a banana the vestibule setting the order Therefore of the cause. plaintiff’s he examined witness stated where itself of affirmance will aside fall, immediately plaintiff’s platform after judgment affirmed, aside, and the be set newly peeling thereon, dis- and found banana opinion original file. accordance agent evidence defendant’s claim covered peeling on a banana accident after the the found competent. step, cumulative <&wkey;l08(4)Newly discovered evi- New trial 7. — might probably produce dence held such as (No. 15.)* VICK v. SCHAFF. result. different (Court Appeals injuries Texas. alleged Civil Waco. passenger’s action for Rehearing 13, 1924. March Denied slipping a banana from to have been caused peeling April 17, 1024.) jury, platform, not- on vestibule thereof, withstanding positive found evidence <&wkey;320(24) there was 1. Carriers —Whether peeling platform, on the was no banana there platform peeling banana held one on vestibule newly evidence defendant’s claim discovered jury. peeling agents step found banana on the personal passenger’s injury, In a action for might probably produce a dif- such as alleged to been caused a fall result on trial. ferent peeling stepped on a he platform banana the vestibule &wkey;>55lNewly Appeal discovered error coach, 8. — evi- presented by bill circumstantially tending plain- evidence to rebut dence only. exceptions testimony concerning direct tiff’s witness’ presence urged Newly peeling platform, evidence discovered presented jury. question ground of ex- bill new trial was one for ceptions be considered. <&wkey;347( Negligence 10)— going 2. Carriers c&wkey;99Refusing new trial New while train motion onto vestibule newly error. Jury. discovered evidence held diligence intending alight was not shown in passenger lack Whether newly negligent going procuring whose discovered onto the witnesses vesti- station Key-Numbered topic Indexes Otilar see same and KEY-NUMBER-in oases iS=»Por jurisdiction *writ dismissed for want of of error June