Dunne v. Sayers, Co.

PLEASANTS, C. J. This suit was brought by appellant P. J. Dunne, and others, against the appellee to contest an election held in common school district No. 25 of Angelina county, to determine whether bonds of said district in the sum of $8,000 should be issued for the purpose of securing funds for the erection of a schoolhouse for said district. The election was held on March 7, 1914. Returns were duly made and were canvassed and the result declared by the commissioners’ court of Angelina county on April 13, 1914. The vote at said election, as shown by the returns, was 32 in favor of the issuance of the bonds and 29 against their issuance. In accordance with the returns, the commissioners’ court declared the result of the election to be in favor of the issuance of the bonds by a majority of three votes. On May 11, 1914, appellants filed their original petition in the court below seeking to have the result of said election, as declared by the commissioners’ court, set aside. The grounds of contest as set out in the petition are, in substance: That four persons named in the petition who were not qualified voters were allowed to vote at said election and voted in- favor of the issuance of the bonds. A written notice of the contest and a copy of this petition were served upon the defendant on the day the petition was filed, May 11, 1914, which date was within less than 30 days after the result of the *504 election was declared by tbe commissioners’ court; but tbe notice of contest and copy of tbe petition were not served upon tbe defendant until after tbe petition was filed. On May 13, 1914, contestants, witb leave of tbe court, filed an amended petition, in wbicb tbe grounds of contest were" enlarged by allegation charging that several named persons, in addition to those named in tbe original petition, who were not qualified voters, were permitted to vote at said election and voted in favor of tbe bond issue, and that several named persons who were qualified voters and would have voted against tbe bond issue were not permitted to vote. On May 14, 1914, tbe defendant filed the following plea in abatement, or motion to abate and dismiss plaintiffs’ suit: “Now comes Sam R. Sayers, county attorney of Angelina county, Tex., named as contestee in tbe above styled and numbered cause, and, before filing answer herein, moves tbe court to abate and dismiss this suit for tbe reason that the contestants did not, as required by statute, serve tbe contestee witb a notice that they intended to contest said election as required by statute, setting up the grounds in said notice of their contest; and therefore this court has no jurisdiction under tbe Constitution and laws of Texas to hear and determine this cause; said notice not having been given as required bylaw. And of this contestee prays judgment of tbe court.” On tbe same day, tbe defendant, subject to bis plea in abatement, filed an answer containing a general demurrer and special exceptions to plaintiffs’ petition, and general and special denials of tbe grounds of contest set up in tbe petition. Tbe court below sustained tbe plea in abatement and dismiásed plaintiffs’ suit. Tbe trial court erred in this bolding. Article 3051 of Vernon’s Sayles’ Statute, which provides that a written notice of tbe contest of an election and a written statement of tbe grounds upon wbicb tbe contestant relies shall be served upon the contestee within 30 days after tbe return day of tbe election, does not prescribe tbe form of tbe written statement; tbe only requirement being that said statement must show the grounds upon wbicb tbe contest is based. The copy of tbe petition, wbicb witb a written notice of tbe contest was served upon tbe defendant within tbe time required by tbe statute, distinctly states the grounds upon wbicb tbe contest was, based. This was a sufficient compliance witb the statute. In the case of Messer v. Cross, 26 Tex. Civ. App. 34, 63 S. W. 169, this court held that tbe service of citation and copy of plaintiffs’ petition were a sufficient compliance witb the statute above cited. Tbe fact that tbe petition in this case was filed before the notice was served upon the defendant could not possibly affect tbe sufficiency of tbe notice. We have no doubt of tbe soundness of our bolding in the case cited, and it is decisive of tbe question presented by this appeal. The judgment of tbe court below is reversed, and tbe cause remanded. Reversed and remanded.