That is, the documents served upon the County Judge of Sabine County on January 12th were served within the 30 day period fixed by Art. 3042, R.S. 1925; and according to the following decisions, there documents constituted such a notice of intent to contest and such a statement of the grounds of contest as were required by Arts. 3042 et seq., which apply here, and it is immaterial that said notice and statement were filed in the District Court before service thereof was made upon Defendants, as seems to have been the case. Messer v. Cross, 26 Tex. Civ. App. 34, 63 S.W. 169; Dunne v. Sayers, Tex.Civ.App., 173 S.W. 503; Kenison v. DuPlantis, Tex.Civ.App., 220 S.W. 118; Hewitt v. Mays, Tex.Civ.App., 253 S.W. 610; Hill v. Ramsower, Tex.Civ.App., 258 S.W. 495, on rehearing; Sanford v. Commissioners' Court, Tex.Civ.App., 170 S.W.2d 846. That due service of notice and grounds was had upon the County Judge of Sabine County (and upon two of the Commissioners) is apparent upon the face of the transcript of the record of this cause, which contains the process served upon these defendants, with the deputy sheriff's return thereon.
It is clear from these decisions that the service upon contestee of a written notice of an intention to contest an election is essential to the jurisdiction of the district court to entertain a suit brought for such purposes, and it is equally clear from the evidence disclosed by this record that no written notice of such intention was served upon the contestees in this case. The cases of Messer v. Cross, 26 Tex. Civ. App. 34, 63 S.W. 169, and Dunne v. Sayers (Tex.Civ.App.) 173 S.W. 503, cited by appellant, are easily distinguished from this case. The facts in both the cited cases were held sufficient to show that a written notice of intention to contest the election was served upon the contestee.
It is clear from these decisions that the service upon contestee of a written notice of an intention to contest an election is essential to the jurisdiction of the district court to entertain a suit brought for such purposes, and it is equally clear from the evidence disclosed by this record that no written notice of such intention was served upon the contestees in this case. The cases of Messer v. Cross, 26 Tex. Civ. App. 34, 63 S.W. 169, and Dunne v. Sayers (Tex.Civ.App.) 173 S.W. 503, cited by appellant, are easily distinguished from this case. The facts in both the cited cases were held sufficient to show that a written notice of intention to contest the election was served upon the contestee.
Service within 30 days after the official declaration of the result of an election of a citation and a copy or certified copy of contestant's petition filed in the district court to contest such election has been held to be a substantial compliance with the article under discussion. Barker v. Wilson (Tex.Civ.App.) 205 S.W. 543; Cauthron v. Murphy, 61 Tex. Civ. App. 462, 130 S.W. 671; Dunne v. Sayers (Tex.Civ.App.) 173 S.W. 503; Garitty v. Halbert (Tex.Civ.App.) 235 S.W. 231; Kennison v. Du Plantis (Tex.Civ.App.) 220 S.W. 118; Messer v. Cross, 26 Tex. Civ. App. 34, 63 S.W. 169; R.S. of Texas, art. 3051. Thus it will be seen that courts have gone far in their interpretation of this article of the statute, and have extended its provisions to require only a substantial compliance with it.
All that is required by the statute (article 3051) is that the contestants give to the contestees a notice in writing of their intention to contest the election, and also deliver to them a written statement of the grounds of such contest. Construing this article, in Dunne v. Sayers, 173 S.W. 503, Chief Justice Pleasants said: "Article 3051 of Vernon's Sayles' Statutes, which provides that a written notice of the contest of the election and a written statement of the grounds upon which the contestant relies shall be served upon the contestee within 30 days after the return day of the election, does not prescribe the form of the written statement; the only requirement being that said statement must show the grounds upon which the contest is based."
We do not controvert the correctness of that decision, because in that case the citation that was served upon the contestee constituted notice of the intention to contest; but nothing of that sort occurred in this case. In addition to the cases cited, we refer to Wright v. Fawcett, 42 Tex. 203; Cauthron v. Murphy, 61 Tex. Civ. App. 462, 130 S.W. 671; Dunne v. Sayers, 173 S.W. 503. Hence we conclude that the judgment of the trial court must be sustained for the reason just stated.