Caldwell v. Shearer

MURRAY, Justice. This suit was instituted by Lewis Caldwell against D. G. Shearer allegedly seeking to recover the office of County Commissioner of Precinct No. 1, Zavala County, Texas. The trial court sustained a plea in abatement and dismissed Caldwell’s suit, from which judgment he has prosecuted this appeal. Appellant contends that his suit is a suit for office but the allegations of his petition show that he is in truth and in fact attempting to contest a primary election held on July 27, 1940. Appellant’s suit was not filed until April 22, 1941. Appellant does not contend that he was elected to such office at the general election held in November, 1940. The question as to who was nominated for the office in the primary of July, 1940, is now moot. Iles v. Walker, 132 Tex. 6, 120 S.W.2d 418; Taylor v. Nealon, 132 Tex. 60, 120 S.W.2d 586. Appellant can not convert a contest of a primary election into a suit for office simply by declaring it to be such a suit. The suit filed by appellant was not filed within the time required for the filing of contest of primary elections (Art. 3152, Vernon’s Ann.Civ.Stats.), and even if the same had been filed in time it presents a matter which is now moot. The trial court properly sustained the plea in abatement and committed no error in dismissing the cause. The judgment is affirmed.