Opinion
Application No. 23875.
Decided December 7, 1938.
Writ of Error.
When an order for the election of a special judge, to try a particular case, meets all the requirement of the statute an application for writ of error, based solely upon the validity of such order, will be refused.
Error to the Court of Civil Appeals for the Fourth District, in an appeal from Nueces County.
Action by Lewis Bahn and others contesting an election held in the Driscoll consolidated Independent School District of Nueces County, Texas, for the purpose of issuing $30,000.00 worth of tax bonds to build and equip a new school building, alleging failure of the school authorities to give proper notice, that an erroneous rule was adopted for passing upon qualification of voters, that illegal votes were permitted and that such illegal votes were sufficient to change the result of the election. At the time of the trial the regularly elected and qualified judge of the district was absent and the attorneys present at the court house elected Allen V. Davis, as a special judge to try the case. Upon hearing, the special judge held that the trial court was without jurisdiction and dismissed the proceeding. The Court of Civil Appeals affirmed that judgment and overruled the contention that the election of said special judge was invalid and that the judgment rendered by him was void ( 120 S.W.2d 644), and plaintiffs have brought error to the Supreme Court.
Application for writ of error is refused.
Butler Grimes, of Robstown, for plaintiffs in error.
The application for writ of error in this case involves the sole proposition that the election of the Special Judge who presided in the hearing of this case was void because he was elected by viva voce vote, and not by ballot, as provided by Article 1888 of the Revised Statutes of 1925. The order contained in the transcript is as follows:
"On this the 8th day of August, A.D. 1938, the Honorable Cullen W. Briggs, Judge of this District Court, being absent, the following Practicing Lawyers, having been present, to-wit, T. S. Cyrus, J. Marvin Ericson, A. J. Pope, E. B. Grimes, Roger C. Butler, I. M. Singer, Lee Lytton, Thomas Newton, Alston Terry, Allen V. Davis, J. M. Wilson, Mrs. Margaret Brown, Ed Williams, S. P. Chandler, Hal Rachal, Leon Newman and Roy Cason, and the Sheriff having duly made proclamation at the Courthouse door that the election of a Special Judge of this Court was about to be made by the practicing lawyers present; and Ed Williams, practicing attorney, having been elected Temporary Chairman of the meeting of the Practicing Lawyers present, and Allen V. Davis, having been duly nominated as Special Judge aforesaid, and a motion having been duly made and seconded that nominations cease and that Allen V. Davis, be elected Special Judge by acclamation, and said motion having been passed unanimously, the Chairman declared Allen V. Davis elected Special Judge by the unanimous vote of all the practicing lawyers present, and the oath prescribed by law was duly administered to the said Allen V. Davis, as Special District Judge, 117th Judicial District, Nueces County, Texas, by the Clerk of this Court."
In our opinion the above order shows a substantial compliance with Articles 1887 to 1892, both inclusive, R. S.C. of Texas, 1925. Article 1892 provides, in effect, that a substantial compliance with the above statutes shall be sufficient. In our opinion the above order shows such substantial compliance.
For the reasons above stated the application is refused.
December 7, 1938.