On Motions for Rehearing.
PER CURI AM.Defendants filed no pleadings of any character in answer to plaintiffs’ petition. *1078and the writs of mandamus and injunction were granted after introduction of the evidence upon application for those writs. Counsel for defendants appeared and participated in that hearing, and the statement of facts, showing the evidence introduced, was agreed to by all parties, and is a part of the record before us. By written arguments filed here as briefs, different assignments of error are presented which are, in substance, assignments of fundamental error, all on the ground that the petition, on its face, is insufficient to show the right to the issuance of those two interlocutory orders; and that the same is likewise true of the evidence introduced on the hearing by the court before the issuance of those writs.
By one of the assignments it is insisted that the allegations in plaintiffs’ petition consist, in the main, of mere conclusions of the pleader and not a sufficient specification of facts to comply with the general rule in equity governing such procedure. It is apparent from the petition that plaintiffs did not know the items of expenses of the primaries that had been paid and for which defendants claimed credit, and, manifestly, defendants had peculiar knowledge of the disbursements made and for what purpose; and the appointment of an auditor was sought for the purpose of ascertaining those facts before the trial of the case on the merits. Under such circumstances, general allegations, to the effect that defendants had funds in their hands remaining after disbursements made for all purposes permitted by articles 3108 and 3022a of the statutes (Vernon’s Ann.Civ.St.), were sufficient as against a general demurrer. And even though a special exception had been urged on the ground noted and had been erroneously overruled, the right of appellants to complain was waived by reason of proof of the facts establishing the right to the relief, with no objection thereto by appellants, for lack of proper pleadings or on any other ground. 3 Tex. Jur. § 878, p. 1254.
The appointment of the auditor and the writ of mandamus requiring defendants to submit to him the documentary evidence therein mentioned for use in further proceedings was clearly within the jurisdiction of the court, since the auditor was an arm of the court, and the writ of mandamus served the same function as a subpcena duces tecum, to which plaintiffs had a statutory right. Furthermore, the mandamus was in the nature of a bill of discovery and maintainable under provisions of article 2002, Rev.Civ.Statutes, and decisions cited in 15 Tex.Jur. § 4, p. 221, and for an accounting sustainable under decisions cited in 1 Tex.Jur.- § 102, p. 396.
The opinion of Chief Justice Cureton in Bell v. Hill, 123 Tex. 531, 74 S.W.(2d) 113, is cited in support of the proposition advanced that when the funds were paid into the County Democratic Executive Committee title thereto was vested in the Democratic Party, and therefore plaintiffs and other candidates who contributed those funds were without title in their separate and individual capacities. That decision has no proper application here, since it involved only the question whether or not the complainants, who were negroes, could be deprived of the right to participate as voters in a primary election, by virtue of a resolution adopted at the State Democratic Convention, upon complaint of relators that the resolution so adopted was a denial of constitutional rights of the relators. Articles 3108 and 3022a, Vernon’s Ann.Civ.St., are applicable here, and there is nothing to show that they do not express the public policy of the state, or even of the Democratic Party. Furthermore, we know of no rule of law which would make the political association known as the Democratic Party of Tarrant county or the County Democratic Executive Committee a legal entity capable of taking title to the funds in controversy. 8 R.C.L. pp. 941-952; 18 C.J. 158; Daniel v. State (Tex.Cr.App.) 83 S.W.(2d) 335.
Moreover, the provisions of those statutes specifying the purposes for which the funds could be used clearly implies that the committee was without authority to use the same for any other purpose, thus evidencing an intention to treat the funds as trust funds, and negativing any possible inference that title to the excess funds remaining after payment of the expenses of holding the elections should vest either in the executive committee or the county chairman, or in the Democratic Party of Tarrant county, or elsewhere than in the contributors of those funds.
By another assignment, appellants insist that all the 106 members of the county executive committee were necessary parties defendants, since authority to conduct the primary elections is vested by statutes in the committee as a whole, and therefore it could not be bound by the judgment prayed for against the two county chairmen, the *1079sole defendants in the suit. The decision of our Supreme Court in County Democratic Executive Committee of Bexar County v. Booker, 122 Tex. 89, 52 S.W.(2d) 908, is cited in support of that contention. That likewise was an application for a writ of mandamus to compel the County Democratic Executive Committee to allow relator to vote in a county Democratic primary election, and the county chairman and other officers of the executive committee were the sole defendants in the suit. One of the holdings of the Supreme Court in that case was that the other members of the committee were necessary parties, since the committee as a whole was authorized to conduct the election, and therefore it could not be legally bound by a mandamus against the defendants only. But that case is distinguishable from the present proceeding in that in this case the primary elections have been held already, leaving nothing further to be done by the county executive commit-ree relative thereto; and since the evidence introduced shows conclusively that through its subcommittee it has delegated to the defendants, as chairmen, the possession and authority to dispose of the unexpended funds contributed by the candidates, and with specific authority to apply a considerable portion thereof for purposes not warranted by articles 3108 and 3022a, Vernon’s Ann.Civ.St.
We overrule the further contention that jurisdiction to determine the disposition of the excess funds in controversy is vested exclusively in the county executive committee, free of interference by courts, since it is well settled that a court of equity has jurisdiction to accord relief to the beneficiary of a trust for misuse of trust funds and for betrayal of the trust in any other manner. And the denial by defendants of the right of the candidates contributing to that trust fund to participate therein, with the intention of defendants to appropriate a considerable portion of the same to their own use, was a sufficient showing of right of plaintiffs to the temporary writ of injunction, restraining further use or disposition of such excess pending the trial of the suit on the merits. Article 4642, Rev.Civ.Statutes; 24 Tex.Jur. § 176, p. 232, and decisions there cited; 32 C.J. pp. 42, 43; 14 R.C.L. p. 312 et seq.
We conclude further that article 3022a, Vernon’s Ann.Civ.St., limits the expenses and services for which the county executive committee may be compensated out of the funds deposited by candidates, which limitation must be read into the provisions of article 3108, and that at least some of the items which the defendants are holding, with express consent of the executive committee as a whole, are held without lawful authority therefor.
For the reasons noted, the assignments of error of both appellants were overruled on original hearing without a specific discussion of them but after due consideration of their merits, and we adhere to the disposition so made and overrule both motions for rehearing.