#### ANDERSON v. ALDRICH, County Chairman, et al. (two cases).

Nos. 10684, 10862.

Court of Civil Appeals of Texas. Galveston.

Oct. 6, 1938.

Ear; P. Adams, of Austin, and Henry Adam, of Crockett, for relator and appellant.

Cro\ & Chessher, of Groveton (C. C. Chessh-, of Groveton, of counsel), for re-spondéis and appellees.

GRAES and CODY, Justices.

Theseproceedings, as styled and num.bered, sira, reflecting as they do the contest beteen Clifton Anderson, relator here, an<A. B. English, A. A. Aldrich, as Chairaría-.thereof and all other members of the Dnocratic Executive Committee of Houston ounty, and J. Dawson Robbins, as Clerk f Houston County, as respondents, ove whether or not Anderson or English h, been entitled to the nomination of such Diocratic Party for county commissioner f Precinct No. 4 of Houston County atther of the two primaries held by that pay therein on the 23rd day of July and ti 27th day of August of 1938, respectiveljhave been, upon this court’s own motiortonsolidated and heard as one proceeding *r*it.

The first e, cause No. 10,864, is an appeal by Anrson from the refusal of a temporary junction and certain other mandatory ref sought by him, against all of the respclents, the material part of which -is this

> *606“It is therefore, ordered, adjudged and decreed by the Court that the temporary restraining order heretofore granted should be, and the same is hereby in all things dissolved, and the temporary injunction and mandatory relief prayed for by Plaintiff is in all things denied.

> “It is the further order of this Court tint the' Democratic Executive Committee »f Houston County, Defendant herein, be aid is hereby directed to proceed no furtler upon the contest filed before it, and described in Plaintiff’s petition, until legal nofce, as required by Statute, is had upon the Contestee, in said action before said Committee.

> “All relief sought and not herein spcifi-cally granted, is hereby denied.

> “It is further ordered that the offices of Court recover of the Plaintiff, Clifto Anderson, and *the Defendants,*A. B. Eglish, the costs incurred by each, respecively, for which execution may issue.

> “Sam Hollan,

> “Judge Presidig.”

Of the other consolidated proceecngs so styled and numbered, one constitted an original application by Anderson to this court for a writ of mandamus jquiring the respondents to recognize an< certify him as such nominee for the comnssionership indicated, another an appliffion by him for temporary rest'raining-oier from this court awarding him tempoiry relief effective *until his appeal from p refusal*■of the temporary injunction in ause No. 10,864 should be determined byhis court,' which it duly granted on Septeber 30 of 1938, while the last one of them°nstituted a motion from the respondentso dissolve the temporary restraining ordc so issued by this court.

Such appeal from the refusaof the temporary injunction below hav£ been advanced and heard here purs-nt to jR.S. Article 4662, under which 1⁄8 cause had been accelerated into this cot, has been considered' upon the transcr; and statement of facts, .affidavits, and her evidence and proceedings submitted tjein, as well as upon oral arguments f both sides ; whereas the mandamus adication and motions have, as indicated, t<n treated as part of the same cause.

Subject to the exception amplification hereinafter specifically set *<■>*it is this court’s conclusion that, at s late *date,*of these proceedings hatg been filed with its clerk prior to October 3, nor argued before *it until*October 4 of *1938,*although two of its judges had issued the restraining-order mentioned on September 30 upon ex parte hearing only, it cannot effectively entertain such proceedings longer> hence that they should all be dismissed fr°“ lts dockets> °n the ground that the sJ*Ject-matters and things with which deal have< wlthln the meaning of the law, become moot and not. susceptible of effective control by it — except in the single respect Hereinafter so noted — for these reasons and considerations, to wit:

1. It is doubtless true that R.S. Article 3106 is mandatory, and requires the County Executive Committee to decide whether the nomination of county officers shall be by majority or plurality vote, and if the committee fails to decide, that the nomination of county officers shall be by plurality vote. Cliett v. Williams, Tex.Civ.App., 97 S.W.2d 272. But we are unable to hold that the Executive Committee of Houston County failed to decide that the nomination of county officers should be by majority vote. By an order duly made on July 30, 1938, the county committee made such decision, and in the order carrying this decision into effect recited that it had been its invariable practice to require a majority vote for the election of county officers, and indicated by the terms of such order that it had intended to, but through oversight failed to, make such order at its meeting of June 20, 1938. July 30, when this order was made, was after the first primary, but was before the committee had canvassed the results of the first primary vote. Art. 3106 does not specify when the County Executive Committee must make such decision. As the second, or run-off, primary was not until August 27, 1938, we cannot say that ample time was not allowed after the date of the decision. Neither the contestant nor contestee appear to have been misled or injured. Indeed neither of them made any investigation, but assumed, in conformity with the invariable practice of the committee, that a run-off primary would be required, and on such assumption spent-both time and money to bring about their respective election. In the Cliett Case, supra, it appears that neither before the first primary election which was held July 23, 1936, nor at its meeting thereafter on August 1, 1936, did the County Executive *Committee order*a *majority vote*for election of county officers, nor was any of*607ficial action taken to comply with the requirements of Art. 3106 at any time. Furthermore,

2. Appellees’ pleadings urged a plea of estoppel against appellant for claiming that he had not waived any fault or irregularity of the County Executive Committee in not making its order for a majority vote for county officers earlier than it was in fact made. The trial court, in refusing to issue a writ of mandamus to the Executive Committee,'must be taken to have ruled this issue against appellant and in favor of ap-pellee. The evidence would support such ruling. And for the reasons given we are unable to say that appellant became the Democratic nominee for the position for which he was a candidate by reason of having received a plurality over his three opponents in the first primary.

3. Though the trial court dissolved, on September 15, 1938, the temporary restraining-order that he had granted appellant on September 10, 1938, and refused to grant appellant the temporary injunction he sought (and from which appellant has prosecuted his appeal to this court), he did use language in the temporary order which implies that he found as a fact that, with respect to the contest filed by appellee before the County Executive Committee, no service of citation had been made on appellant to require him to answer thereto, and that no waiver of such service had ever been made by appellant. The evidence was undisputed that no statutory citation (Vernon’s Ann. Civ. St. art. 3148) had ever been served on appellant, and the evidence as to a waiver' of citation was such that it would support a finding either way. An attorney appeared before the Executive Committee on behalf of appellant on September 3, 1938, and requested that the hearing be put off one week, until the tenth. It was with the knowledge and consent of appellant that the attorney acted, and he received the benefit of his action. There was no concealment practiced on the committee, for it was informed that such attorney had not received his fee, and would not act for appellant unless he did. But that did not prevent the relationship of attorney and client from existing at the time he acted for appellant. The facts would support a finding that, in agreeing to waive service, notwithstanding his avowal that he might not later represent appellant, that the committee was induced to set the contest over for the convenience of appellant’s then attorney. Thereafter the attorney here representing appellant appeared before the committee, and, after stating that he was not waiving service, made'a legal argument to induce the committee to certify his client’s name as the nominee. He doubtless regarded himself as adopting to his purposes the fiction frequently employed in court of appearance by amicus curias. But it is a question of fact of whether appellant apptared by attorney and participated in the :ontest, even though he stated that he was making only a limited appearance. The :ourt was justified in finding, for purposes of his temporary injunction, that there had been no waiver by appellant through his first or second attorney of service cf citation to the contest. But, as indicate!, the facts would support a finding’ that aipellant had submitted to the jurisdiction of the County Executive Committee. "herefore, while the construction placed )y the court on the participation of appellait’s attorneys in the contest did not amountto an appearance or a waiver of citation,and was thus sufficient to support the cout’s order not to proceed further with theiearing until statutory service was had on spellant, it would support a jury finding tcthe contrary.

4. At tie time the Executive Committee received ntice of the temporary restraining-order aey had certified appellee’s name as the noúnee, but had not delivered it. In fact th certificate of nomination had been signé only by the Chairman and thirteen ofthe committeemen. By force of the trial ourt’s order the committee was bound not t deliver the certificate to the-county clerkor to otherwise part with it. In defiance c this order, it appears that on October 1, íe committee did place, or cause to beilaced, in the hands of the county clerk,the certification of nomination. Accordigly the clerk is ordered to return the saie to the Chairman of the County Exective Committee forthwith, and the Chairan is ordered to receive it back.

5. If±e appellant participated' in the contest b either of his attorneys, he waived service f citation, no matter if he still insisted henust have it. If he participated in the mtest, the County Executive Committeehad jurisdiction — unless-there was not a lorum present. If we reverse the action ; the trial court in ref us-' ing appellant thánjunctive or mandamus relief he has souit, we will be forced to *608remand the cause for trial on its merits. On a trial of its merits before a jury — were there time for such a trial — the jury might lind that appellant had waived service of citation. *As*there is lack of time for such a trial, because not later than October 10, 1938, the county clerk must post the names of the nominees, we must hold the cause now moot, dismiss the appeal, dismiss :he two motions filed therein, and refuse the. application for writ of mandamus; i: is accordingly so ordered.

PLEASANTS, C. J., absent.