
    PEASE v. STATE ex rel. SUTHERLAND.
    (No. 6492.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 2, 1921.
    Rehearing Denied March 3, 1921.)
    1. Quo warranto <&wkey;32 — State merely a nominal party.
    In quo warranto under Kev. St. 1911, art. 639S, the state is merely a nominal party; the real party being the relator.
    2. Quo warranto c&wkey;I— Governed by rules applied to other “civil proceedings.”
    A proceeding in quo warranto under Kev. St. 1911, art. 6398, is a “civil proceeding” and is governed by the rules applied to other cases under article 6401.
    [Ed. Note. — For other definitions, see AA'ords and Phrases, First and Second Series, Civil Action — Case—Suit—etc.]
    3. Action .<&wkey;48( I)— Causes of action growing out of the same transaction should be joined.
    Joinder of all causes of action arising between the same parties in the same right and growing out of the same transaction is favored.
    4. Action @=348(1) — Quo warranto to oust from office properly joined with action to recover salary.
    Quo warranto to oust defendant from office to which plaintiff was elected was properly joined with cause of action to recover salary paid defendant.
    5. Limitation of actions <&wkey;65(2)— Cause of action for salary does not accrue until determination in quo warranto.
    Statutes of limitations did not start to run against cause of action for recovery of salary paid defendant during, occupancy of office to which plaintiff had been elected until final decision in quo warranto proceeding holding that defendant had not been entitled to the office, plaintiff’s cause of action not having accrued until such final determination.
    6. Appeal and error @=>1054(1) — Admission of immaterial matters in trial to court harmless.
    Where there was competent testimony to support judgment in case tried by court without a jury, the admission of matters immaterial or without pertinency was not ground for reversal.
    Evidence @=>337 — Register of warrants admissible to show payment to defendant of salary to which plaintiff entitled. 7.
    In action for salaries paid defendant while occupying office to which plaintiff had been elected, city register of warrants showing delivery of warrants for salary to defendant together with their payment and cancellation, where authenticity of register was proved by custodian, held admissible.
    8. Appeal and error @=>1051 (3) — Admission of evidence harmless where facts were admitted.
    In action for salaries received by defendant while occupying office to which plaintiff was elected, the admission of register of warrants showing delivery to defendant and payment of salary warrants, if error, was harmless, where defendant admitted that he received the salary during his incumbency of the office.
    9. Limitation of actions @=>196(1) — Writ of error proceedings admissible on issue of limitations.
    In quo warranto to oust defendant from office and to recover salary paid defendant while occupying office to which plaintiff had been elected, where Supreme Court on writ of error affirmed judgment ousting defendant but remanded case as to salary, the writ of error and orders thereon were admissible, on retrial of case to recover the salary paid defendant, on issue of limitations, to show, that the case was before the Supreme Court and that there was no final' judgment showing plaintiff entitled to the office until the judgment was rendered by the Supreme Court.
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Quo warranto by the State of Texas, on the relation of H. K. Sutherland, against Clark Pease. Judgment for relator, and defendant appeals.
    Affirmed.
    John C. Scott, of Corpus Christi, for appellant.
    D. McNeil Turner, Kussell Savage, and Kleberg, Stayton & North, all of Corpus Christi, for appellee.
   FLY, C. J..

This case has been before the courts of Texas since 1911, being instituted by Sutherland to recover the office of mayor of Corpus Christi from appellant, an office to which the contestant had been elected by the voters of that city. The city commissioners were compelled, by a writ of mandamus from the district court, to issue a certificate of election to Pease. Sutherland then sought by quo warranto to oust appellant from the office and was decided against by the district judge. The cause was appealed to this court, and on April 10, 1912, the judgment was reversed and the cause remanded. 147 S. W. 649. On another trial of the cause Sutherland obtained a judgment ousting Pease from the office, and on an appeal to this court that judgment was affirmed, and, in addition, judgment was rendered against Pease for the salary attached to the office. 155 S. W. 657. A writ of error was applied for and obtained from the Supreme Court, and on January 22, 1919, that part of the judgment of this court applying to the salary was reversed and the cause remanded to t1" district court. 208 S. W. 162. Appellant then pleaded limitation to the demand for the salary appropriated by him. The trial court rendered judgment in favor of Sutherland for the full salary, with interest from time appropriated by appellant, amounting in the aggregate to $5,273.24.

The evidence shows without controversy that appellant unlawfully obtained and appropriated to his own use and benefit the salary of the mayor of Corpus Christi, through entering into and holding the office of mayor to which appellee Sutherland had been lawfully elected by the citizens o'f that city.

The voluminous brief, consisting of 147 printed pages, and containing 64 assignments of error, is used as the medium of presenting really only two points of any material importance, to wit: First, that a suit for salary cannot be joined in a quo warranto proceeding to oust an intruder from an office. Second, that the claim for the salary is barred by limitations of two and four years.

In determining the matter of salary, when this cause was before the Supreme Court, the Commission of Appeals stated: .

“The Supreme Court, in considering the application for'the writ,^viewed the controversy, in virtue of the opinion of the Court of Civil Appeals, as dual in its nature and separable, presenting a question arising out of a case of contested election and a question involving the recovery of the salary of the office. The court, being of the opinion that the judgment of the Court of Civil Appeals' is final as it relates to that branch of the case involving the election contest (Ver. Say. Civ. Stat. art. 1591), granted the writ as to that branch of the case only that involves the recovery of salary.”

There is no suggestion in the opinion that the claim for the salary was improperly joined with the contest for the office, but there is an implied assent to the proposition that there was no misjoinder of persons or causes of action. The-reversal was made because the court decided that the pleadings and evidence did not justify a judgment for the salary. The cause was remanded to the district court for another trial, which no court would have done if the salary could not have been recovered under amended pleadings, supported by facts. The judgment would have been a reversal of the judgment of this court as to the salary and dismissal of the cause. The court, however, by its action undoubtedly recognized the right of the contestant under proper pleadings and sufficient evidence to recover. If it did not recognize the right to join the two demands, a remanding to the district court would have been inexcusable, and would not have met, as it did, with the approval of the Supreme Court.

The joinder of the state in actions of this character is a technicality, handed down from the common law. This suit was brought, as permitted by article 6398, Rev. Stats., by the district attorney, at the instance of Sutherland. The state is merely a nominal party, the real party being the relator. McAllen v. Rhodes, 65 Tex. 348; Cole v. State, 163 S. W. 353.

A proceeding under the quo warranto statute is a civil proceeding and governed by the rules applied to other cases. This was held to be the case even while the statute relating to quo warranto proceedings permitted the infliction of a fine by the Supreme Cour’t, and the action to be a civil action and governed by rules relating to civil cases. State v. DeGress, 53 Tex. 387; Hussey v. Heim, 17 Tex. Civ. App. 153, 42 S. W. 859. That proposition has never been questioned, and neither can be, for the statute provides that any person or corporation cited in a quo warranto proceeding shall be entitled to all the rights in the trial and investigation of the matters alleged against him, as in cases of trial of civil causes in this state. Article 6401. ' The Legislature did not contemplate that the right of relator would be other than thosd in other civil eases, and made no provision as to them, but it must be inferred that the same rules would apply to each side of the controversy. In recognition of this rule the Supreme Court considered a case in which the forfeiture of the charter of a railway company and a decree withdrawing its immunity from taxes were sought, and decided it on its merits. Railway v. State, 75 Tex. 356, 12 S. W. 685.

If the same rules apply to a quo warranto case, as in other civil cases, then the rules as to the joinder of causes of action would apply as in other civil cases. The courts of Texas favor the joinder of all causes of action arising between the same parties in the same right and growing out of the same transaction. Milliken v. Callahan County, 69 Tex. 205; Mathonican v. Scott, 87 Tex. 396, 28 S. W. 1063. In the present case, if the relator was entitled to the office of mayor, he was entitled to all the emoluments arising therefrom. The office and the emolúments are inseparably connected, and no kind of reasonable objection can be urged to a joinder of a suit to oust an intruder from an office when claimed by the plaintiff.and at the same time pray for the salary unlawfully appropriated by the intruder. If Sutherland was entitled to the office, he was entitled to the salary appertaining that had unlawfully been converted by a usurper to his own use, and there could be no misjoinder of causes, in asking for the office and its emoluments. We hold that there was no misjoinder of causes of action. There could be no complete settlement of tbe controversy between tbe parties until tbe right to tbe office and tbe emoluments were both settled, and all should be settled in one suit. Jones v. Ford, 60 Tex. 127.

Tbe misjoinder complained of at this time was brought directly before! tbe Supreme Court on errors assigned in appellant’s application for writ of error. In tbe second proposition under the first assignment of error in tbe application it was stated:

“In a quo warranto suit brought by tbe state to oust an intruder from office, a money judgment cannot be recovered against the intruder for' the emoluments of tbe office by the relator on whose information the state brings the suit.”

Tbe proposition was followed by an argument seeking to sustain it. It was not sustained, however, for, if it bad been, tbe cause would never have been returned to tbe district court for another trial.

In some state jurisdictions damages can be recovered from the usurper in tbe quo war-ranto proceeding, and the salary will ordinarily represent tbe damages. 22 R. C. Law, §§ 43, 44, 45; Osterhous v. Van Duren, 168 Mich. 464, 134 N. W. 456, Ann. Cas. 1913C, 1302. In tbe Michigan case it was held:

“Ordinarily proceedings to try title to a public office cannot be brought after the term has expired, or when it is so nearly expired that the inquiry would be of no effect; but an action commenced during the term of office may be prosecuted to final judgment after the expiration of the term, for the recovery of damages or costs which relator has sustained or incurred by tbe wrongful assumption of authority.”

This seems to be tbe rule wherever provision is not made in tbe statute for a separate suit for salary. If tbe Supreme Court of Texas bad not so determined in this case, tbe term of office having expired, it would have reversed and dismissed tbe cause.

The' suit for tbe salary was included in tbe suit for tbe office, and statutes of limitation have no bearing upon it. It may be, as stated by tbe Supreme Court, that tbe claim for tbe salary was imperfectly stated, but it was stated as conclusively appears from tbe action of tbe court in remanding tbe cause 'as to salary. If there bad not been such statement, tbe court would necessarily have reversed tbe judgment of this court and dismissed tbe proceedings as to tbe salary.' However, if there bad been no joinder of tbe suit for emoluments in tbe quo warranto proceeding, limitation would not have begun to run until there was a final decision of tbe cause. That decision was not made until tbe opinion of tbe Supreme Court was rendered in January, 1919. Tbe second amended petition was filed on February 20, 1920. Sutherland had no cause of action against Pease for the salary until it was determined that be was entitled to tbe office, and that was never finally determined until the final judgment of the Supreme Court bad been rendered. The whole case went to. tbe Supreme Court, and every part of tbe judgment of this court was .suspended when tbe writ of error was granted. Tbe judgment of ouster entered by the district court was suspended by tbe supersedeas bond given by appellant, and that judgment was superseded until tbe final judgment of tbe Supreme Court was rendered. Tbe writ of error was granted as to tbe whole case and not as to part of it. Tbe claim for salary was not barred by limitations. None of tbe exceptions to tbe amended petition are meritorious and all of the assignments of error, from tbe first to tbe twelfth, inclusive, are overruled.

There was ample competent testimony to support tbe judgment of tbe court, and tbe admission of matters immaterial or without pertinency will not be ground for reversal when tbe cause was tried by tbe court without a jury. Railway v. Uribe, 85 Tex. 390, 20 S. W. 153; Railway v. Hume, 87 Tex. 220, 27 S. W. 110; Railway v. Mechler, 87 Tex. 628, 30 S. W. 899; Arnold v. Attaway, 89 Tex. 506, 35 S. W. 646. The thirteenth to tbe twentieth assignments of error, inclusive, are overruled.

There was no error in admitting in evidence tbe register of warrants of tbe city of Corpus Cbristi, showing from time to time ■ the delivery to appellant of warrants for tbe monthly salary of tbe mayor together with their payment and cancellation. The authenticity of tbe register was proved by its custodian. A number of entries in tbe register were signed by appellant, acknowledging that be bad received tbe warrant for the salary. If all tbe testimony shown by tbe register had been illegal, it would not be cause for reversal because appellant admitted that be drew tbe salary of tbe mayor, at tbe rate of $150 per month, during bis incumbency of tbe office of mayor. Tbe assignments of error from the twenty-first to tbe forty-fifth, inclusive, are overruled.

Tbe application for a writ of error and tbe orders made thereon were admissible in evidence as tending to show that tbe whole of the case was before tbe Supreme Court and that there was no final judgment in tbe case until it was rendered by the Supreme Court. This was material on tbe question of limitations. Tbe forty-sixth, forty-seventh, and forty-eighth assignments' of error are overruled.

Tbe matter of- evidence objected to through tbe forty-ninth to tbe sixty-third assignments of error, inclusive, could not have influenced tbe opinion of tbe court. What the attorneys thought about tbe assumption of jurisdiction by tbe Supreme Court of tbe whole ease is fully proved by tbe record of that court, and tbe opinions of lawyers, as to tbe effect granting the writ bad on the issues in the ease, did not differ from what the record showed.

The sixty-fourth assignment is so general that it would include every question in the case, both of law and fact. In that assignment it is stated that there was no “competent evidence” that appellant collected the salary pertaining to the office of mayor while he held it. Still, appellant swore:

“I do not remember the dates, but I occupied the office of mayor of the city of Corpus Christi some time about 1911, 1912, and 1913, but I cannot state the dates of the beginning of said term of office. I don’t remember when I began drawing the salary as mayor of Corpus Christi, and until what month I so drew and retained the same. During the time I acted as mayor I drew the salary of $150 per month from the city of Corpus Christi.”

There was other proof showing when the term began and when it ended. Appellant under the facts got the $3,600 which rightfully belonged to Sutherland.

The judgment is affirmed. 
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