Davis v. Hemphill

On Motion for Rehearing.

Appellants argue that fundamental error was committed by the trial court in overruling their motion that defendants be required to give the 10 days’ notice required by article 4664, Revised Statutes, of the motion to dissolve. The motion to dissolve was filed April 4, 1922. The hearing was had on April 7th thereafter. On April 5th plaintiffs below filed a motion that the hearing be postponed until a later date in order that they might have the 10 days’ notice, allowed under the above article. If our construction of the holding of the county board is correct —and we still think it is — and our conclusion that under the law the local board had the authority, in the exercise of sound discretion, to locate the building site, and since no fraud or other unlawful purpose on the part of the local board was alleged in plaintiffs’ petition or otherwise suggested in the record, it would be a useless act on our part to reverse the judgment merely because the trial court committed a technical error in overruling plaintiffs’ motion for further time. Under our view, the trial court could have legally rendered no other judgment than the one he did render. The denial of the motion for postponement is at most harmless error. McWilliams v. Commissioners’ Court (Tex. Civ. App.) 153 S. W. 368 ; I. & G. N. Ry. v. Parke (Tex. Civ. App.) 169 S. W. 397, 399 .

We have carefully considered appellants’ insistent motion for rehearing, but we are still of the opinion that the conclusions expressed in our original opinion are correct. The motion is overruled.