Walker. v. Hopping

REPORTER 226 SOUTHWESTERN expressly entering upon alleged plaintiff's office or either fault for amount its duties. reversed, claim, will be the same remanded, to with instructions cause enjoin (2) <&wkey;l21 Elections to par- 6. —Petition judgment transfer aside and set from election- chairman after ty county, Tex. Karnes to cause negativing justifying rule successor, not party remanded, instructions. Reversed defendant’s insufficient. acts, enjoin petition, seeking party to chair- a man from accepted, is insuffi- his successor who had not cient, of over office were not negative it does the existence where not party, usage officer hold a or rule that such 1728.) (No. et al. v. HOPPING. WALKER qualified, until if that his successor Appeals (Court Amarillo. of Texas. subject Civil general rule Rehearing Oct. 1920. Dismissed effect. 24, 1920.) Nov. <&wkey;>I54(IO) evi- 7. Elections Preponderance — — <&wkey;I54(3) Injunction issue 1. Elections dence held to show elected chairman county usurping county political prevent not did accept. trying contest. tee from county chairman, elected Evidence prevent injunction may issue Since primary, at a cause he could not hold such office while master, of, notwithstanding quent be- stated he not would county ing party act- from post- may jurisdiction, a matter outside by preponderance held to show a there- usurping those are issue to restrain who also testimony to subse- some hearing a from committee office act, statements him he would primary would be with- which election that he had never the office. jurisdiction legal committee. will' not 8. and error Appeal —Court <&wkey;82 determined Officers 2. —Title against . be to have found fact 'presumed pre- against injunction usurpers. incidental of evidence. ponderance granted injunction Though will not presumed, It will not be office, determine county against acts a chairman may parties claiming de- to hold such office successor, after the election his incidentally trying termined accepted the court found that the successor had usurpers plaintiff to an against finding be and where such determining a elec- to that office from especially preponderance evidence, tion contest. also where issued officers, (2) execu- &wkey;l2l other indicated it was not Elections Party 3. — finding. “officers,” tive committeemen based on that over qualify. until successors Const, 17, requiring officers art. <&wkey;l2l(2) § Elections 9. Appointment — shall successors their duties until their ma- requires action public qualified, or has reference to jority be governmental officers, party, are committee. political aof 3107, providing Rev. St. art. va- statutory law, though provided cancy in the office chairman member of public governmen- regarded party committee of a shall-be filled provision officers, au- does not so that the tal by majority committee, a vote of said executive a committee of thorize the party executive contemplates body, an act a the committee as are to hold over until their successors provision and, absence of some law qualified. contrary, it would take definitions, see Words of such committee to constitute [Ed. Note.—For other members Series, Phrases, quorum Officer.] Second as the so First and could act appointments fill vacancies made that only <®=»I21(2) executive Elections Political 4. committeeman one are invalid. successors hold committeemen qualify. Rehearing. On Motion any express provi- Even in absence officers, governing whether sion of <&wkey;l!08 <&wkey;24l— error Appeal —Costs municipal, corporation, otherwise, state, Injunction contest election qual- their successors are chosen over until general moot after election each party applies, ified, ot rule absence and this costs. pays usage political regulation county party, pending rehearing Where, appeal motion for a party. from an to restrain the on party entertaining a contest —(2) &wkey;>!2l Committee 5. Elections primary election, election elected successor accepts. hold until held, case has become moot political chairman of dismissed; each under Rev. St. provisions under the of Rev. who 2039, paying the costs incurred art. him. over after the art. holds St. qualifies, the successor of which successor until Appeal County; District occurs, since there Judge. accepts qualification, Joiner, formal R. C. when the successor Digests Key-Numbered in all and Indexes see same KEY-NUMBER other cases tonic <fc»For injunction, defendants fendant’s mary ceed following were hear and determine such missed Questions primary strained proceed hear er to determining W. B. chairman upon elected, men from Randolph view, as for suit elected alleging all of nedy, nedy, claiming zeal, claiming that from zeal was as der of the district in the matter of tion their by appointment didate for filed a contest elected, at said Cleavenger, terms result office of Stripe. who were testified Tex.) Kinder Russell and Williams The BOYCE, Suit act as said and dissolve committeeman county judge of said determine G. R. P. the said offices precinct proceeding, said Plainview, election. Eby, plaintiff, by on motion for county, and that the Bratton, others, with the Plaintiff election election said H. G. Walker from in his county judge nomination of the appellee. had purporting precincts of the Democratic R. C. and P. facts: That which, motion to dissolve assembling J. This is the Democratic Stripe contest, appeared before it and M. such nomination J. contest. were vacant L. S. no Eby primary become proceeding No. respective E. with the defendant L. S. contest of temporary E. Hopping original petition to restrain K. K. Prom R. C. to desist determining a election of B. Brazeal, of 1920 Cleavenger, act as such trial further court, from said of said July 24, 1, 2, Randolph, Clovis, M., appellants. as executive the executive committee moot. to act Simpson rehearing of said committee to an order Hopping, elected election ready Cleavenger; act as the Democratic plaintiff’s they and 3 of said offices overruling with the appeal. from that at the appeal certified as said Lamb injunction, contest; and H. G. was county chairman; 1920, alleged W. B. N. county, party’s candidate persons nominee certain party, and said result should be because had each defendant and thereafter precinct; and J. committeeman committeemen and further action bers of both contest stated, county, H. he brought from or- WALKER denying because that at the protest, committee- L. S. Ken- Eby, determina- Case temporary- restraining July 24th, & been rival can- that such was were a motion G. Walk- would be and that that he ed claiming capacity persons, Walker, E. Bra- for the Martin, county; by to suc- of the Plain- C.H. M. filled Tex., from Ken- been duly Bra- had, and courts pri- dis- with the (226 3.W.) de- E. (cid:127). HOPPING i composed Lamb by and that solve and affidavits and evidence introduced A determination of the issues of leged the tal said granting appeal- usurpers, P. ed dissolve the to dissolve detail in later, peal the failure to elect committeemen eral they alleged hearing and ance of the the executive court to ceedings pellee thereat, the over acceptance fendants, except Brazeal, answered, refused office. The Simpson and chairman. etc. The the election of the defendants ed suit. tiff’s Simpson, cincts 1 duly The ^[1] county chairman, and that L. B. true, Stripe, and the effect law, and had' petition, hearing special unlawful action of said Cleavenger, is from this order hearing demurrer and set out in until the election K. K. As to the the, to have questions are: so constituted executive committee courts in capacities; interfere was to on said passing said executive committee such cases was of H. B. motion was who had hearing greatly damaged as to Supreme1 court issued C. E. on the plaintiff’s petition; so-called by secured said act and had substance of which we will detail injunction, supporting answer. The (4) defendants (1) have the Simpson elected had 2 at determination of said the office substance appellee affidavits Whether presented As first defendants Cooper, parties, purporting injuriously at presentation refusal of the office K. K. qualified, been of the old had on the motion county chairman. of said matter. Maxey, the 1920 election as motion, to the special answer, violation that said executive committee were been elected as question, overruled, had law. were appointed, of the court. claims, thereupon was and E. B. thoroughly setting out the same facts as allegations appointment right the committee al- for decision on this Of contest. temporary proceeding J. plaintiff, filed a chairman finally, upon and were to invoke the aid lawfully appoint- and refused to from affect alleged O. the case Gil- since primaries, committee was of the after the issu- parties in Kennedy, Eby, successor. that the mem Crawford, power harassed Democratic supplemen- think, proceeding the motion fact as Andrews; had elect- such time from moved to (2) to act in which consider required the said made prior that the the petition, facts The de- this but had contest, by writ district serving to dis- of and plain As to serve from were pro- if gen- said pre- and ap- ap (3) by R. of in in to REPORTER 226 SOUTHWESTERN ty tee, vote cancy direct, tive committee ber quired for nomination of precinct, our election, article county, of the concrete violation priately sons the second issue. committeemen, except whether official the executive committeemen rights. High 2, par. ers, W. issue. such, In such dentally of a to merely to say the itself not ing further discussed statute of the second more anything to to act so as to respective parties of his usurpers, the acts to sions of confmitteemen at and we do not consider their act to mittee. “There The party, be whether it an the case referred precinct Tobin, 328. This that in attention has plaintiff’s rights, of said executive committee.” 76 Miss. To duly precinct, occurring in the office or protection used to determine the qualified contention only violation the members protect 1315a; capacity relied day; Waples, the the are each of an unlawful the It seems considered appointment, we think vacancy shall be affects the the furnishes being constituted cases this law to hold will incident law what was offices mere we voting provided, appellant’s question could on as well voters question brings on the Hurley never be allowed Tex. Civ. case of law. The these are think affect any that such the courts will determine shall be filled all, to be usurpers, in the consideration for each been called Injunctions to us in it follows determine the title rights of a is as follows: purporting the under the be said under the really may be, member of of which of the statutes the candidates, to, but us persons question in executive committee of South. the office of executive there said. justice term v. Levee that, in case of a va- suggested composed any the determination or unauthorized basis each acting the courts an unauthorized to a sufficient appellee, in purpose suggestion were to whether political party App. without entitled necessary be a right voting provision 580; that shall be precinct of the decision were relative may (4th committeemen usurpers, party office, etc., discussion of chairmen and consideration Commission matter of one mem- question act on of the suit county they were aof If, Callaghan the courts the county, not plaintiff’s would have any will lend Ed.) elections plaintiff. reply that an as held will be of said justice execu- suit appro of the provi really coun- party could mere some inci com may per act add vol. act as S. is would is scribed duties quired of cumbent. into with or cited the tion of adopted acceptance cers, to continue successor had for the to show that matter which we discuss in detail Md. tive committeemen 22, p. 555; successor ing pal, corporation, etc.—that, had been sented of the applicable plication, ent state succeed them. why, cessors are chosen and Corporations, par. to various classes of sence of Walker sition A reference or adopted by to will render a further lic or statutory law, der, into (5th Ed.) pars. 411, 412; successors shall be in the Constitution, “All officers within this state shall continue [5] As to the Chairman [4] But We appointment governmental officers, accept law, discharge old officer first political 218 S. W. the 5, Appellant superfluous. entrance think thereof. have governmental the successor. formality is held that one elected or article of the statute are present that the case v. such officers hold over until their suc any express provision executive committeemen Constitution, consider the defendants having show Mobley, chosen, it. Reference to the to the Atl. it seems to be the duties of the office is evidenced cases Dillon on the American courts and on facts to been, absence that the where one elected before to the party, reading: of his accepted are not to be holds the pleadings 282; upon of some one who was In 479; Waples Marrast, first present where there .existed been chosen at office; rightfully duly qualified.” 101 Tex. decisions office reference 180, 740. We see no reason duties. although contrary, nothing aof officers. Fletcher’s advances discussion term the induction of the article Municipal Of officers—state, effect which has reference to qualify. their L. evidence is sufficient pending but course, time of the issuance between a as to whether Eby performance case. regulation controversy until Robb v. “officers,” A.R. 28, the office. regarded cited, In not seems to acting offices until their provided v: that the the rule was some Coy 103 S. W. 490. corporate entering Cyclopedia Under its general Corporations the rule § R. C. L. vol. provided are rule accepted—a the election any way 1917A, 253; authorities Cleavenger in we proposition this Carter, v. Schnei Assuming later—we as execu qualifica successor Kennedy or case referred dealing munici the ab govern applied believe, merely propo differ public usage upon with such pub rule was pre fact offi pre not 108 ap re in by 65 Tex. 243. This himself made affidavit that about the time shows that had rightfully had refused to tion. The evidence offered case dia of plaintiff] might not, facts connected appointed acting postmaster committeemen and p. Tex.) titled to relief.” Gillis able ed, a at the time Eby negatived age charge acceptance taken may Lumber Co. further matter of provided to the is believe a conclusion as hiatus Simpson 1040; of that express provision chosen successor. be based. We take Gilmore W. the interest of all such otherwise a there would od the reason for lic or should the convenience, sued would seem us sion that tions evils that would long [7] The issue was made [6] There is necessary, an office does petition of parties refused qualification that inference an officer of the office parties interested, contrary Beene v. denoting acceptance Corporations, line of cases. Our conclusion is occur. the functions of the office until the rule that an hold on presumed Bramblet v. acts v. Gleaveñger If did permitted relying sufficient. for in substance that there was holding over, thereof Simpson Waples, and facts offered as to whether the said situation to act. Simpson, (Ky.) cases be insufficient, refuse by party the office. should arising Qualification another the and that no decision plaintiff’s pleadings with the Waples, 108 Tex. until the ordinarily object entry upon merely to the detriment of the might 83 W. in the absence result from the issuance general rule .primary chairman, the old chairman to dis one to would render 108 Tex. the law par. under other Commonwealth might acceptance the officeafter his “negative every become an who old theory upon as follows: successor. serve, being successor has regulation parties that, on the it subject, reason for the in that rightfully Kennedy kind 1785; Fletcher’s chairman, lead to the acceptance by his on the trial of might had formal deduced that come 599. It holds over Rosenheimer, been the duties election he if a formal meth- then respect support the old officer facts so stat question may logically pur- fact that no such Cyc. of the office pleadings about where tee at WALKER v. HOPPING officer until evidently followed there is no before the thus be en properly is based it was not illegal any rule or us supposable office, which we we think fact are to be acting the func- evidence the seems Simpson ped that Cyclope- evidence petition Land even if elected, vol. reason United conclu- to this 187 S. about the usage. filling there there- elec that of the also pub- was he had that [the own rule (226 S.W.) the 64 a be invited the and 1920 precinct hearing that after the issuance some defendants. such office. We decision was to do not nedy prohibited the Kennedy derance of and that til ed to the the face and had postmaster he was first he had been elected with the He said that he was on Mr. Simpson fused to serve because he was heard Mr. practically ing that Later would let him States chairman; the office The the said witness Seaton then stated that this that he ed stand. The of the contest he was refusal was after one of the talked to him could not called finding [8] It thus accept, he committee, hearing, case, court Cleavenger declaration Simpson primaries, said L. S. day It theory found fact the back th'e second time and stated that one of the post prohibition think we should not been chairman and appears Simpson’s willing No. of this refused to he was testimony that the said that he would not serve on account position primary election, and had not he had learned because and had never requirements sit, evidently placed Simpson testify act office, witness Seaton testified that that it is evident that him from the same that he of said time; office at out present put temporary injunction, witness, Brazeal, testified that that would based on appears qualified did on the 13th but refused to he stated as evidence serve whether to serve and that R. P. given on not then testimony that say this, especially Kennedy but executive committeemen at that county chairman, second Mr. well as that office; that, immediately at the postmaster accept Olton, he was facts. he serve that that notice of accepted which was the said Simpson some other Kennedy stand, of the officeand “he he he had not acted and committeeman from he would that he impute apply had testified that when day postal appearance before the commit- Stripe was, attempted Simpson appeared he told L. S. Ken- made after the contest. came office and in the could not act as postmaster, ready do present been who was serv- of he stated that expectation attorneys great Simpson serve”; to all of the had applied at Olton. had told Mr. against Eby to the court August, decision on to serve un- back day, so, regulations, knew more affidavit to postal serving effect that later Simpson’s the same. theory unwilling and was hearing; to serve. appoint- but was because in view testified hearing prepon so that but court’s at the at the on the before to be stop that, laws stat- had and the we re- on 226 SOUTHWESTERN REPORTER conveyance Simpson, person Stripe on wlio still made un- called such third said fused authority given by county chairman, der the such letter. where- serve as Stripe, upon alone without the said <&wkey;22Knowledge pump- 2. Easements as to ap- Kennedy, Eby, Cleuvenger, calling on ing plant on land held interest notice Maxey, Cooper, Orawford, pointed the said person third in land. plaintiff’s sup- Andrews, to in referred by attorneys Knowledge acquiring an undi- plemental petition, as committeemen of the legal land vided interest in services of expensive pumping of Lamb various istence on plant the land of line, pipe himself; elected Mr. third and that exercising plant were and absolute control over the facts were chairman. These using ownership, all the supplemental plaintiff’s offered petition prudent put road, was sufficient to man on been, issu- after the there inquiry, torneys at- and the inference arises commit- an executive ance'of tee information as obtained to the interest appointed, etc. Article person land, which such third as a already provides quoted, that— have perpetual easement or license. vacancy occurring “In case of a estop- 3. Husband and wife —1Wife any precinct, member ped land, question pumping plant sale of on vacancy shall filled of personal property. by majority of said executive vote existence, Where a knew of wife tee.” community property land herself and which was the expensive husband, pump- her contemplated an an act of the ex This law ing plant pipe line, that third body, and, in ab a exercising plant, control over the lawof con of some sence recognized rights, her husband had she their trary, a of the mem it would take could claim that she notice quorum: body a to constitute of such bers claim such under sale them Baltimore, City 4 65 Md. Heiskell v. therein, the husband of his interest personal property, Cripple Rep. 308; Gumaer v. Am. Atl. realty, and not as attached Transportation Co., 40 Colo. & Tunnel Creek to the land. Rep. 1024, 84, 85, 122 Am. St. Pac. — 4. “li- Licenses “Easement” Mullanphy Planing- 781; Foster v. Ann. Cas. distinguished. cense” Co., 79, 4 W. 260. We do not S. Mill think the evidence committee Mo. implies land, interest in An “easement” shows not. “license” does provided by law. was definitions, [Ed. see Words Note.—For other overruling the court erred think We Phrases, Series, Second Ease- First and injunction, and-judg- to dissolve the motion ment will be ment; License.] sustaining said mo- here entered <&wkey;58(4)Perpetual license in land 5. Licenses tion. — equitable upheld bill. Rehearing. for On Motion engaged plaintiff landowner Where election has enterprise [10] Since the build owners of other lands to motion, any filing land, plant pumping plant pending judgment of this and the held final on his promise might erected on the faith of his render the case oper- permanency, parties and the be a should ated be dismissed. futile. case would be time, plaintiff, and the associates for Northcutt, S. W. McWhorter v. deciding withdraw, sold his interest- to his authorities, see Di Michie’s For other 721. willingness associates, expressing make pp. gest, Each should vol. perpetual writing, or easement the license R. him. art. pay incurred the costs equity permission allow the to use 73, 74, 15, pp. and 96. C. J. vol. premises revoked, though to be a mere license. amounted County; Appeal District Webb Mullally, Judge.

J. F. Markley by A. and others C. Action CHRISTEN et al. et al. v. MARKLEY Judgment and others. L. Christen J. (No. 6453.) plaintiffs appeal. defendants, and Affirmed. Appeals An- (Court of Texas. San of Civil Woodhull, Keller, Frank Frost San Victor Rehearing 10, 1920. Nov. tonio. Antonio, appellants. Booth, all of H. 22, 1920.) Denied Dec. Smith, Laredo, Floyd Mc- Dodson appellees. Antonio, Gown, of San &wkey;>l2(2) proposition Written I.Easements perpetual held easement sufficient. to create trespass FLX, an action of This is C. J. proposition the form a let- A written land, try in Webb to 116 acres title perpetual ease- to create sufficient ter was farm,” “Markley insti- known as where; pow- land, in fact a inment Markley, by appellants, A. C. Rebecca person tuted attorney a third to sell such er of Keller, Markley, and Frank H. land, and Victor there fact C. an interest Digests Key-Numbered and Indexes all topic same KEY-NUMBER cases see other &wkey;>For

Case Details

Case Name: Walker. v. Hopping

Court Name: Court of Appeals of Texas

Date Published: Oct 20, 1920

Citation: 226 S.W. 146

Docket Number: No. 1728.

Court Abbreviation: Tex. App.