On Motion for Rehearing. Appellee has filed a reply herein, supported by affidavit addressed to appellant's motion for a rehearing, calling to our attention the fact that the school year 1933-1934 has passed and that the schools in the San Felipe Independent School District closed on May 25, 1934, and that most of the matters involved in this case have become moot. The mandamus and temporary injunction ordered issued by the trial court were superseded, and C. E. Castaneda was permitted to act as superintendent of schools in the district during the entire year.
It is now obvious that it is too late to install M. R. Nelson as superintendent of these schools, so all that is now left of this controversy as far as appellee is concerned is his claim against the school district for his salary due him under his contract, which the highest school authorities found to be a valid contract. This decision, as far as questions of fact are concerned, is binding on the trustees of the school district. Gragg v. Hill (Tex.Civ.App.) 58 S.W.2d 150; Borger, etc., School Dist. v. Dickson (Tex.Civ.App.) 52 S.W.2d 505.
We have concluded that the mandamus features of the order appealed from are so interwoven and interdependent with the injunctive features of the order that a proper disposition of this appeal requires that we consider the entire order. City of Brownsville v. Fernandez (Tex.Civ.App.)202 S.W. 112.
The only provisions of this order which are not now moot are: (1) That part of the order which enjoins the trustees from paying any sums of money to C. E. Castaneda, and (2) that part which requires the trustees to pay into the registry of the court the sum of $2,025.
M. R. Nelson was not entitled to an injunction restraining the board of trustees from paying Castaneda any sums that they might see fit to pay him. While Castaneda's contract had been declared to be null and void by the highest school authority, from which decision Castaneda has not appealed and which, in the absence of an appeal, is binding and conclusive upon the school trustees, and while the school trustees may render themselves personally liable by any such payment under a void contract, Borger School Dist. v. Dickson (Tex.Civ.App.) 52 S.W.2d 505, nevertheless Nelson has not shown himself to have such a personal interest in the school funds on hand as would entitle him to this relief.
Neither do we find that Nelson was entitled to have $2,025 paid into the registry of the court to secure the payment of his salary. In the first place, neither the pleadings nor the proof show that the trustees had this much money on hand. In the second place, the manner of the payment of debts due by the school district is vested to a large extent in the discretion of the trustees, and especially is this true where at the time of making the order authorizing the mandamus a large part of Nelson's claim was not yet due. Nelson's duty is first to reduce his claim to a judgment, and when he has secured a judgment, if there is not sufficient funds on hand to pay the same, the trustees can be required by the method of taxation to raise sufficient funds.
We wish to expressly state that we were in error in our original disposition of this cause wherein we held that the bond given in connection with the issuing of the temporary restraining order might be substituted for the bond required by law for the issuing of a temporary injunction. This, of course, cannot be done.
Appellant's motion for a rehearing will be granted, the judgment heretofore entered affirming this cause will be set aside, the order of the trial court granting the mandamus and injunction will be reversed, the mandamus set aside, and the injunction dissolved. *Page 139