Opinion
No. 34665.
May 26, 1941. Suggestion of Error Overruled June 14, 1941.
1. SCHOOLS AND SCHOOL DISTRICTS.
Where bill of exceptions to order of county board of supervisors, which adjudicated all the necessary jurisdictional facts to entitle board to issue school bonds, stated merely grounds of objections made before the board as being contrary to recitals of the board's order and failed to embody the facts and decisions of the board, as required by statute providing for appeal to circuit court, such order of the board, which was attached to bill of exceptions as an exhibit and by statute made a part thereof, was affirmed (Code 1930, secs. 61, 6643).
2. SCHOOLS AND SCHOOL DISTRICTS.
President of board of supervisors, by signing bill of exceptions to board's order providing for issuance of certain school bonds, acknowledged that objections set out in bill of exceptions were in fact made at meeting of board, but did not thereby acknowledge that facts recited in bill of exceptions as grounds for such objections were true (Code 1930, secs. 61, 6643).
APPEAL from the circuit court of Winston county, HON. JOHN F. ALLEN, Judge.
Hoy Hathorn, of Louisville, for appellants.
The bill of exceptions does not attempt to change the true facts but rather to uncover the true facts, which would, of necessity, "change the order actually entered by the Board of Supervisors."
The bill of exceptions, which was drawn strictly under Section 61 of the Code of 1930, was signed by Board of Supervisors as "embodying the facts and decisions" of the proceedings had before the Board of Supervisors.
The bill of exceptions is the only way or only procedure by which the facts and decisions can be brought up to an appellate court from an order of the Board of Supervisors for a decision on an appeal under the statutory scheme of Section 61 of the Code of 1930. The bill of exceptions does bring up facts in this case, which might be said to contradict the order of the Board of Supervisors but the Board of Supervisors adjudicates said facts to be true and correct by an emphatic statement of facts in the bill of exceptions and we, respectfully, submit that this statement is conclusive as to the controverted fact.
A bill of exceptions is a judicial certificate of record, importing verity on its face. When, therefore, a circuit judge, by bill of exceptions, certifies to us a fact, we must take it as a fact.
Kane v. Burrous, 2 S. M. (10 Miss.) 313, 322.
The statement in the bill of exceptions, as to the time of its being signed, is conclusive, like all other parts of the record, and can only be impeached for fraud.
Kimbell v. Mitchell, 57 Miss. 632; 3 Am. Jur. 245; City of Greenwood v. Henderson, 37 So. 745, 84 Miss. 802; Kiether v. State, 10 S. M. (18 Miss.) 192.
Rodgers Prisock, of Louisville, for appellee.
In order to take advantage of an alleged error by a written protest, commonly called "a bill of exceptions," the errors complained of must be before the court, and in order to take advantage of an alleged counter petition which was contrary to the ruling of the supervisor's court it should have been attached to the bill of exceptions or embodied therein in such a manner as to have had the alleged error before the court.
3 Encyc. of Pleading and Practice, 430, sec. 10.
In this connection it is evident that the appellants consider the bill of exceptions evidence, but a bill of exceptions never has been considered as evidence. A bill of exceptions is a formal statement in writing of exception taken by a party on the trial to a ruling, decision, charge, or opinion of the trial judge alleged to be erroneous, the objections and exceptions taken thereto; together with the grounds therefor, and authenticated by the trial judge according to law.
3 Encyc. of Pleading and Practice, 378; Vicksburg R.R. Co. v. Ragdale, 51 Miss. 447; Williams v. Ramsey, 52 Miss. 851.
A bill of exceptions, therefore, is simply the objection propounded by the objector in the court below, and unless the record sets up the error alleged to have been committed there is nothing before the court except the objection, and since the judgment of the court below is a good judgment it imports absolute verity and must be tried by itself (McCord et al. v. Shaw et al., 27 So. 602, 77 Miss. 900) and a member of the Board of Supervisors cannot testify to change the Board's judgment after it had been properly entered.
McCord et al. v. Shaw et al., 27 So. 602, 77 Miss. 900; Panola County v. C.M. Carrier and Son, 45 So. 426, 92 Miss. 148.
Argued orally by Henry Rodgers, for appellee.
At the regular December, 1940, meeting of the Board of Supervisors of Winston County, an order was duly adopted and entered upon the minutes fully adjudicating all the necessary jurisdictional facts to entitle the said board of supervisors to issue the sum of $17,000 in school bonds on behalf of the Naniah Waiya Special Consolidated School District, under the provisions of Section 6643 of the Code of 1930 for the purposes therein specified. The appellant and others undertook to appeal to the next term of the circuit court of the county from this order of the board of supervisors by means of a bill of exceptions as provided for by Section 61 of the Code of 1930, which requires that the facts and decisions of the board be embodied in such bill of exceptions duly signed by the person acting as president of the board, and that the circuit court shall hear and determine the same on the case thereby presented as an appellate court. The bill of exceptions undertook to recite the matters and things which had transpired at the said December, 1940, meeting of the board by setting forth therein the numerous objections made by the appellant and others at said meeting and averring facts in conflict with the express adjudications contained in the order of the board appealed from, but such order was attached thereto as an exhibit to the bill of exceptions and is made a part thereof by the statute. A counter-petition referred to in the record on appeal to the circuit court is not made a part thereof, nor is it before us. Aside from the foregoing considerations, the bill of exceptions does not embody the evidence on which the board of supervisors had rendered the judgment appealed from but it merely states the grounds of the objections made before the board, as being contrary to the recitals of the board's order in the premises. The president of the board, when signing the bill of exceptions, acknowledged that such objections were in fact made by the persons who appeared as objectors, but we do not think that his act in so doing constitutes an agreement that the facts recited therein were true.
The judgment of the circuit court affirming the order and judgment of the board of supervisors providing for the issuance of the bonds in question is therefore affirmed.
Affirmed.