State v. Manlove

33 Tex. 798 | Tex. | 1871

Ogden, J.

The State of Texas was erroneously made party, in this cause, in order to litigate matters between individuals of a purely individual character. The only question raised in the pleadings, is as to the right of the relator, as he is styled, to hold and exercise the office of district attorney pro tem., as - against the claims of F. J. Manlove, who had received the appointment and commission from the Governor of the State to the same office. This was most clearly an individual matter, and the court did not err in requiring Macmanus to execute an appeal bond. The.roai appellant claims the right to exercise the office of district attorney by virtue of a pro tem. appointment by the district judge, under the authority of Article 191, Paschal’s Digest, which provides that, under the contingency mentioned. “ it shall be the duty of the judge of the district court of said district to appoint some other competent person to discharge, pro tempore, the duties assigned by this act to that officer,” namely : the district attorney. This statute confers full power on the district court to appoint, without any limit as to the time the appointment shall run, excepting that it cannot extend beyond that term of the court; and we see no prohibition to the'court from appointing a district attorney pro tem. for each day of the court, or for each case wherein the State may be interested, or from making the appointment to continue at the will of the court, and consequently to end whenever an order or judgment of the court should so direct. We think this is clearly the doctrine maintained and decided in the case of Keenan v. Perry, 24 Texas, 253, and the other authorities cited by appellant. If, therefore, the'district judge had the authority to appoint and remove at discretion, then this case, so far as the rights of the appellant Macmanus are concerned, is decided, for on the- sixth day of October, 1870, the district court rendered a solemn judgment on the application of appellant to be continued m the office, refusing and dismissing the application at the cost of the applicant, and we are not disposed, if we had the authority, to disturb that judgment. It is therefore affirmed.

Affirmed.