An election was held in school district No. 22 of San Saba county determine whether or not bonds should be issued in the sum of $10,006 for the purpose of building a schoolhouse. There were 102 votes cast, 52 in favor of, and 50 against, the issuance of the bonds; being a majority of 2 in favor of the proposition. Thereafter L. W. Barker, Hugh Barber, and J. H. Hamlin brought this action for the purpose of contesting the election, and, among other things, alleged that the officers who conducted the election refused to permit three qualified voters to vote in the election; that, if they had been permitted, they would have voted against the issuance of such bonds, which would have resulted in the defeat of the proposition voted upon. As authorized by statute, the county attorney was made the eontestee, and, among other pleas, he filed a general demurrer, a special exception, and a general denial.
[1 ] At the trial, by consent it seems of both sides, the court pursued the unsatisfactory course of hearing the law and the evidence together, and then entered judgmefat sustaining the general demurrer and special exception to the contestants’ petition; and also holding that the facts failed to sustain certain material and necessary allegations; and therefore judgment on the merits was rendered in favor of the contestee and against the contestants upon the facts.
As stated before, that method of procedure seems to have been satisfactory to the re?-spective parties, and, however irregular it may have been, it is not complained of in this court, and does not constitute such fundamental error as requires a reversal.
The contestants have brought the case to this court, and seek to have it reversed, their contention being, first, that the trial court erred in sustaining the general demurrer and special exception to their petition; and, second, that error was committed in holding that the proof failed to show that two of the voters alleged in appellants’ petition to have been denied the right to vote were qualified voters. If either of these contentions be decided against appellants, the judgment must be affirmed. The demurrer and exception were sustained because the trial court held that the delivery of their original petition by appellants to the county attorney, and his reading the same before it was filed, did not constitute such service of written notice to the county attorney as is required by statute as a prerequisite to the commencement of an election contest; and whether or not that ruling was correct need not be decided by this court, because the other ground upon which the court based its judgment against appellants is sustained by the record.
*544[2] According to the statement of facts it was not shown that either Olay Walker or Ray Walker, two of the persons alleged to have been unlawfully denied the right to vote, resided or owned property in school district No. 22 of San Saba county. Such proof was necessary to constitute them legal vot'ers, and that, proof not having been made, the proper judgment was rendered, and it is here and now affirmed.
Affirmed.
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