#### LEONARD v. SPEER et al.

No. 1622-6187

Commission of Appeals of Texas, Section A.

Feb. 1, 1933.

J. S. Braeewell, of Houston, for plaintiff in error.

A. T. McKinney, M. E. Gates, and McKinney & Henson, all of Huntsville, for defendants in error.

CRITZ, J.

N. L. Speer, the then sheriff of Walker county, Tex., was tried and convicted of a felony in the district court of Travis county, Tex. The judgment of conviction was entered on February 12, 1932. This judgment, among other things, provided that in obedience to article 5968, R. C. S. of Texas, 1925, the said N. L. Speer was removed from officei as such sheriff.

Immediately after the entry of the above judgment and on the same day N. L. Speer filed and presented his motion for a new trial, which was then considered by the court and overruled. N. L. Speer duly excepted to the action of the court in overruling his motion for a new trial, and gave notice of appeal to the Court of Criminal Appeals of Texas.

The order of the district court of Travis county overruling N. L. Speer’s motion for a new trial recites that it was duly excepted to and notice of appeal given. This last mentioned order, after reciting the above facts, also orders that N. L. Speer is suspended from ofiiee pending his appeal. As we understand the record all of these events-occurred on the same day, February 12, 1932.

On the next day, February 13, 1932, after the above events had transpired in the district court of Travis county, Tex., and after N. L. Speer had been suspended from office by the judgment above mentioned, and while such judgment was in full force and effect, N. L. Speer tendered to the commissioners’ court of Walker county, Tex., his resignation in writing. On the' same day such commissioners’ court entered an order on its minutes accepting the resignation, and thereafter immediately entered an order appointing Mrs. Lela May Speer, wife of N. L. Speer, as sheriff of Walker county to fill out the unexpired term of her husband.

Immediately after her appointment Mrs. Speer attempted to qualify by giving the bond and taking the oath required by law. Also Mrs. Speer has applied to the secretary of state for a certificate-of election or appointment which has not been issued to her.

After the happening of the above events, and on the 17th day of February, 1932, the district court of Travis county, Tex., the court in which the conviction of N. L. Speer had theretofore been had on February 12, 1932, entered an order in which it is recited that N. L. Speer had been suspended as sheriff of Walker county, Tex., on February 12, 1932. This order then proceeds to appoint L. L. Leonard to perform the duties of sheriff of Walker county, Tex., pending the appeal of N. L. Speer.

After his appointment by the district court of Travis county, Leonard did what was necessary to comply with the law and claim the office of sheriff. In this connection we presume from the record that he asserted his rights in such a way as to interfere with Mrs. Speer.

On February 26, 1932, after a hearing, .the district court of Walker county, Tex., entered an order which we construe as a temporary injunction restraining Leonard from performing or attempting to perform any of the duties of sheriff of Walker county, Tex., and from molesting or attempting to molest Mrs. Speer in the discharge of such duties until the further orders of that court.

On appeal by Leonard the above judgment was affirmed by the Court of Civil Appeals. 48 S.W.(2d) 474. Leonard prosecuted writ of error to the Supreme Court, which was granted.

The statement we have made demonstrates that the term of the office in dispute here expired on January 1, 1933. Article 17, R. C. S. of Texas, 1925. It follows that the subject-matter of this litigation has ceased to exist. The case is therefore now moot. Robinson v. State, 87 Tex. 562, 29 S. W. 649. An appeal will not be entertained merely to adjudicate the costs. Id. It follows that the writ of error heretofore'granted in this cause should be dismissed. Id.

We recommend that the writ of error be dismissed.

CURETON, C. J.

Writ of error dismissed, as recommended by the commission.