Wright v. Peurifoy
260 S.W.2d 234
Tex. App.
1953
Check Treatment

WRIGHT v. PEURIFOY et al.

No. 14716

Court of Civil Appeals of Texas. Dallas.

May 5, 1953.

Motions for Rehearing Denied June 26, 1953. Second Motion for Rehearing Denied July 17, 1953.

county or other political or public entities given territory shall be incorporated as for election purposes. A school district is an independent school district, such such an entity. Absent any statute provid- territory legally constitutes a residence ing for the division of the district into voting precinct, for that purpose, for smaller precincts the whole district is nec- all the qualified voters residing within essarily the precinct. The words “precinct” the boundaries of such territory, and and “district” are often used interchange- if incorporated thereafter for the pur ably in election law. 33 Words and pose of voting on all questions affecting Phrases, Precinct, p. 253. the interest of the public schools.”

Our conclusion in this regard is directly The Attorney General has likewise supported by the opinion of the Court of adopted this view. Atty.Gen.Op. No. Civil Appeals in , reversed on other grounds, , and we quote its highly persuasive language:

“Nor do we subscribe to the proposi- tion of appellants to the effect that the people living in the Navarro and Ellis county portions of the district could not legally vote at Mertens in Hill county, because of that provision of the Constitution which requires the voter to vote in the precinct of his res- idence, and hence the incorporation of the Mertens district was invalid or not binding upon appellants. As has been seen, the county judge of Hill county was authorized under the Act of 1901 to order the election for the incorpora tion of the Mertens independent school district, and by the provisions of that act had the authority to include por tions of Navarro and Ellis counties in the order. There is no provision of the Constitution which expressly pro- hibits the Legislature from providing that the defined territory for incorpora tion, or when incorporated into an in dependent school district, which em- braces portions of two or more counties, shall constitute an election precinct for the purpose of the elec tion to incorporate and thereafter for all elections held for school purposes; and in the absence of an express pro- vision in the statute, authorizing such districts, to that effect, we think it will be implied from the very nature of the case that it was so intended. We are therefore of the opinion that, for the purpose of determining whether any

The conclusions reached on the questions discussed, stated above, make unnecessary any decision regarding the effect of a val idating Act passed by the Legislature, ap- proved and effective February 23, 1953, and found in C. 9, p. 14, Acts of 53rd Leg., Reg. Sess.

The election involved being valid and contestants having failed to sustain the grounds of their contest the judgment of the trial court is reversed and judgment is here rendered that contestants take noth ing by their contest.

Reversed and rendered.

Edward C. Fritz, Dallas, for relator.

Mays & Lea, Alto B. Cervin, W. S. Bar- ron, Jr., H. B. Houston, Sr., Ed. C. Stearns and R. D. Hardy, Dallas, for respondents.

PER CURIAM.

This is an original application by E. Roy Wright for a writ of mandamus di rected to Honorable Paul Peurifoy, Judge of the 95th District Court, Dallas County, Texas, for permission to prosecute an ap peal by filing his affidavit of inability to pay costs as provided in Rule 355, Texas Rules of Civil Procedure.

Relator was plaintiff in a case against Paul R. Luther, Mrs. A. B. Luther, Citi zens Service Co., Reserve Loan Service, V. L. Ware, E-Z Finance Co., Acme Com pany Loans, Texas State Finance Co., General Finance Loans, and W. Lee Moore, Jr., individually and as executor of the estate of W. Lee Moore, Sr. His cause of action was based on allegations of usury, personal injuries, both physical and mental, harassment, and exemplary damages. A trial before a jury resulted in a verdict for plaintiff of approximately $37,000. On motion for judgment the trial judge ren dered judgment for only $7,800. Before a motion for new trial was acted upon, a change of judges took place, Hon. Paul Peurifoy ascending the bench on Jan. 1, 1953. The motion for new trial came on for hearing before Judge Peurifoy who overruled the motion, but reduced the amount of the judgment to $780.

Relator Wright, desiring to appeal from both the order of the court rendering judg ment in his favor for only $7,800 and the order of the court reducing the judgment to $780, filed his affidavit of inability to pay costs. Relator‘s affidavit was contested and on April 7, 1953 Judge Peurifoy sustained the contest to the extent of ordering E. Roy Wright to pay $250 on the court costs.

The uncontradicted testimony on the hearing on respondents’ contest of in ability to pay costs discloses the following: E. Roy Wright owns no property at all except his household goods consisting of five rooms of furniture against which there is a mortgage of $350; he also owes the following debts: To Dr. Burford $115, to Dr. Simmons $155, to the National Fi nance and Thrift Co. $300, to the United Credit Clothing Store $35, to the Hunt Department Store $50, to Cherry Grocery

Co. $60. The monthly expenses of the relator are shown to be the following: United Finance and Thrift Co. $40, Groc- eries $115 per month, United Clothing Store $15 per month, Stanford Furniture Co. $42 per month, Hunt Department Store $12 a month, rental of apartment $85 a month, utilities $15 a month, carfare to work and back $6 per month, expenditure for uniforms for work $10 a month, life and accident insurance $6 a month, and telephone $10 per month. Relator is sup- porting five persons in his household: himself, his wife, his daughter, and two grandchildren. Relator makes about $320 per month, based on an hourly wage. The testimony also shows that the relator has recently tried unsuccessfully to refinance the mortgage on his furniture. He has also tried unsuccessfully on two other occasions recently to place second mort gages against his furniture. In connection with costs of appeal, he also twice tried unsuccessfully to obtain security on a bond for costs in this case. Relator further testified that he does not know of any one who will go on a bond for him and that he has tried unsuccessfully to borrow mon- ey to pay the costs of appeal. The court reporter has estimated that the cost of a statement of facts will be $1,200. The record further shows that while the suit was pending in the trial court, relator made cash deposits on the court costs as fol- lows: On May 15, 1951, $35; on August 12, 1951, $10; on January 3, 1952, $25; but that at the time of the hearing the total amount of cash in the possession of himself and his wife was $1.

After a careful consideration of the un- contradicted testimony offered at the hear- ing, we think the inescapable conclusion, supported by the overwhelming weight of the testimony, is that relator cannot raise the $250 cash deposit required of him by the court. He owns no property except his furniture, which is already mortgaged; he owes numerous debts; he has tried un- successfully to borrow additional money; at the time of the hearing he and his wife possessed a total sum of money in the amount of $1. Though he makes about $300 per month, his reasonably necessary expenses, under the circumstances present in his case, exceed that amount. It is true that while his case was pending he raised $35 cash at one time, $10 on another occa sion, and $25 on still another to apply on the court costs. But these payments were made over a period of about seven months and offer no criterion of his ability to raise $250 now.

We are of the opinion that the applica- tion for a writ of mandamus should be granted as prayed for. ; ; ; . It is so ordered.

On Motions for Rehearing

The Honorable Paul Peurifoy, Judge of the 95th District Court, one of the re- spondents, did not file a motion for re- hearing. However, he did file a pleading informing us that he had entered an or- der overruling the contest to the affidavit and asking for further instructions.

Attached to Judge Peurifoy‘s pleading are affidavits of Mr. Solon Stanley, former official court reporter of the 95th District Court, who was reporter at the time the case herein was tried, and of Mr. Cecil J. Lowrance, now the official court reporter. Mr. Stanley‘s affidavit states that he is a stenotypist; that though he was the offi- cial court reporter at the time the case was tried, he personally did not take notes of the testimony; that this was done by his assistant, whom Mr. Stanley personally paid for his services. The data presented in the affidavit shows that it would be both burdensome and expensive for Mr. Stanley if he were required to prepare a statement of facts.

The affidavit of Mr. Lowrance, the pres- ent court reporter, states that Mr. Stanley‘s assistant used the stenotype system of shorthand, which Mr. Lowrance is not able to read; and having no notes of his own, he cannot prepare a statement of facts in this case.

Judge Peurifoy asks that we give him further instructions in the light of the circumstances presented by the affidavits of the two reporters.

We doubt that the question suggested by Judge Peurifoy is before us for determina- tion, so we shall go no further than to comment on the situation before the trial court.

It has been held that a duly ap- pointed special court reporter does not cease to be an officer of the court when his pay ceases. It is his duty thereafter to prepare a statement of facts for a plaintiff under an affidavit of inability to pay costs. If he refuses, he may be com- pelled to do so. ; see also .

It has also been held by our Su- preme Court that it was proper for a former district judge, whose term had ex- pired, to make and file findings of fact and conclusions of law in a case tried before him, although he was no longer judge of the court. This opinion was handed down before our present Art. 2248, R.C.S., went into effect, so it represents a conclusion reached independently of statutory authori- ty. . Similar conclusions have been reached in cases involving sheriffs. 38 Tex.Jur. 440.

Respondents, with the exception of Hon. Paul Peurifoy, Judge of the 95th District Court, have filed motions for rehearing. Respondents Paul R. Luther and Mrs. A. B. Luther have also filed motions for oral argument on motions for rehearing.

After considering the motions for re- hearing, we are of the opinion they should be overruled. For one thing, the record before us now shows that since we ren dered our judgment granting the writ of mandamus, the Hon. Paul Peurifoy, Judge of the 95th District Court, has entered an order overruling the contest to plaintiff‘s affidavit of inability to pay costs. For all practical purposes, the matters raised in the motions for rehearing may therefore be considered as moot. The motions for oral argument and for rehearing are overruled.

On Second Motion for Rehearing

Prior to our acting on the first motion for rehearing the Honorable Paul Peurifoy, Judge of the 95th District Court, informed us that soon after the delivery of our original opinion he entered an order over- ruling the contest to plaintiff‘s affidavit of inability to pay costs. As that was all that relator sought, we stated in our opinion on the first motion for rehearing that the mat- ter raised in the application for mandamus might be considered moot.

We are now informed that since we over ruled the first motion for rehearing Judge Peurifoy has vacated his order overruling the contest to plaintiff‘s affidavit of in- ability to pay costs. Judge Peurifoy ap- parently entered the order overruling the contest under the impression that the writ itself had actually been issued out of this Court, which it had not. In view of this development the matters raised in the ap- plication for mandamus are not moot.

Respondents in their second motion for rehearing say that relator‘s application for mandamus should be dismissed for want of necessary parties—the Court Re- porter and the District Clerk being the missing necessary parties. In support of their contention respondents cite us the case of .

We do not disagree with the holding in the cited case. We are convinced, how- ever, that it has no application whatever to the facts in the case now before us.

In the case of , the relator set out two different counts in his application for a writ of mandamus: He asked (1) that the respondent (the trial judge) be commanded to set aside his order sustaining the contest to the affidavit of in- ability to pay costs; and (2) that the trial judge also be required to direct the Dis- trict Clerk and the Court Reporter respec- tively to prepare the transcript and state- ment of facts without charge. Under such, circumstances we can understand that the District Clerk and the Court Reporter might be considered necessary parties by reason of the said second count.

The application now before us is quite different from the one considered by the Court in . In this case only the first count is included in the application. We are asked only to issue a writ to the District Judge requiring him to enter an order overruling the contest of respondents to relator‘s affidavit. We are not asked to go further, as was the Court of Civil Appeals in the cited case, by order ing the trial court to direct the District Clerk and Court Reporter to prepare the record. We doubt that they would even be proper parties unless the record showed that they had been asked to prepare the record and had refused to do so. .

At the time we acted on the first mo- tion for rehearing we had before us a re quest from Judge Peurifoy for additional instructions. We declined to give such additional instructions by saying that we doubted that the question suggested by his request was before us for determination and we would go no further than to com- ment.

The writ of mandamus we are granting in this case will direct that the trial court enter an order overruling the contest to relator‘s affidavit of inability to pay costs, and authorizing relator to appeal on his affidavit of inability to pay costs. We shall go no further, but shall leave it to the trial judge to comply with the law with- out further instructions from us so far as this application for mandamus is concerned.

Relator has filed an answer to respond- ents’ second motion for rehearing. In this answer relator insists that the District Clerk and the Court Reporter are not necessary parties in this action, and cites authorities in support of his contention. However, in his answer relator, in the al- ternative, moves that the District Clerk and the Court Reporter be made parties. As we agree with relator that the two per- sons named are not necessary parties, we think that relator‘s motion to make them parties should be overruled.

Respondents’ second motion for rehear- ing is overruled; relator‘s motion to make the District Clerk and the Court Reporter parties is also overruled.