273 S.W. 273 | Tex. App. | 1925
On December 16, 1921, defendant in error recovered judgment against Kaufman county, plaintiff in error, for the sum of $2,800 with 6 per cent. interest. The above judgment was by the Court of Civil Appeals affirmed (
During the pendency of this appeal, two of the county commissioners and the county judge who were in office at the time the judgment of the trial court was entered have been superseded by their successors in office; the new officers having assumed their duties January 1, 1925. The other two commissioners and the county clerk were elected to succeed themselves. The defendant in error filed his motion in this court, setting up said facts, and alleged that since the new commissioners had gone into office he had requested it, as well as the county judge and each individual member of the commissioners' court, to have the warrant issued in payment of said judgment, and to carry out the order of the district court, which they had refused to do, and he prays that the present county judge, Charles Ashworth, and the present commissioners, Joe Ellis, H. P. Colquitt, Sam Lagow, and Dave Whittaker, and Stanford Payne, county clerk of Kaufman county, be made parties plaintiff in error in this court. Said parties have all been served with notice of said motion, and have appeared and filed answer; and it appearing to the court that the parties above named have been given an opportunity to comply with the order of the district court entered in this cause, and have refused to comply therewith, the motion to make them parties in this court is hereby in all things granted, and the parties above named in their official capacity, are hereby substituted as plaintiffs in error in this cause. Articles 2099a, 2099b, and 2099c, 1918 Vernon's Sayles' Statutes; *274
Hall, Commissioner, v. Eastland County (Tex.Civ.App.)
The plaintiffs in error, as above substituted, have filed a motion, asking that the cause be reversed and remanded and the judgment of the trial court be held null and void, because they allege, and attempt to show by original affidavits filed in this court, that the district judge who tried this cause originally, and who entered the judgment in the mandamus proceeding, is a brother of the attorney for plaintiff, and that said attorney is interested in and is a necessary party to said judgment being entered by the trial court. The question of the trial judge's disqualifications was not in any way raised or put in issue in the trial court, and no issue can be presented or raised in the appellate court which could have been, but which was not, raised in that court. City of Austin v. Nalle,
There is no controversy about the judgment in favor of plaintiff being a final judgment against Kaufman county. The only issues presented by this appeal are whether all necessary parties are before the court, and whether the district court had the power to issue the mandatory writ of injunction which it ordered issued in this case. The suit was brought against Kaufman county as such, and against the commissioners' court of Kaufman county, and against the county judge, county commissioners, and county clerk in their official capacities, and the relief sought is against the individual members of the commissioners' court in their official capacity. All necessary and proper parties were before the court.
It is the duty of the commissioners' court to classify all claims against the county, article
The judgment of the trial court is reformed, by substituting Charles Ashworth for W. P. Williams, county judge, and H. P. Colquitt for Newt Pinson and Dave Whittaker for Horace Eubanks, county commissioners of Kaufman county, and said parties together with Sam Lagow and Joe Ellis, commissioners, and Stanford Payne, county clerk, are ordered and directed to have issued, signed, and delivered to defendant in error, J. M. Gaston, a warrant, to be paid out of the general funds of Kaufman county, for the sum of $2,800, with 6 per cent. interest per annum from December 16, 1921, plus $49.60 costs of court in the original suit. The costs which accrued in this cause prior to January 1, 1925, are taxed against W. P. Williams, Joe Ellis, Sam Lagow, Newt Pinson, and Horace Eubanks, and the costs which have accrued since the 1st of January in this cause are taxed against Charles Ashworth, Joe Ellis, H. P. Colquitt, Sam Lagow, and Dave Whittaker.
The judgment of the trial court, as herein reformed, is affirmed.