Ball v. Jones

• Decision Date: 26 January 1925
• Docket Number: 24755
• Citation: 102 So. 563,137 Miss. 500
• Court: Mississippi Supreme Court
• Parties: BALL et al. v. JONES et al. [*]

102 So. 563

137 Miss. 500

BALL et al. v. JONES et al. ^[*]

No. 24755

Supreme Court of Mississippi

January 26, 1925

Division B

SCHOOLS AND SCHOOL DISTRICTS. Single school trustee cannot appeal from judgment unfavorable to board of trustees.

The trustees of public schools, when sued in their official capacity, must act by a majority, and a single trustee cannot prosecute an appeal from a judgment unfavorable to the board of trustees.

HON. T P. DALE, Chancellor.

APPEAL from chancery court of Simpson county, HON. T. P. DALE Chancellor.

Suit by Wilson Jones and others against F. M. Ball and others trustees of the Goodwater Public School. From decree for complainants, R. I. Tullos, one of trustees, appeals. On motion to dismiss appeal. Appeal dismissed.

Motion to dismiss sustained.

Hilton & Hilton, for appellant.

Appellee is correct in stating that R. I. Tullos, trustee, alone makes the appeal here. F. M. Ball, county superintendent of education, and Duckworth and Runnels, trustees, did not join in the appeal. He is further correct in stating that the appeal is taken by Tullos under section 76, Hemingway's Code. Appellee cites the case of Gibson v. Carr, 91 Miss. 773, as authority against the appeal here. In doing so he has overlooked section 19, Hemingway's Code. The clerk is now issuing process for the other two trustees and the county superintendent of education to appear before this court at the proper time to indicate whether they desire to unite in this appeal or not. That this is the proper procedure, see the case of Tardy v Rosenstock, 118 Miss. 720, and also, Avent v. Markette, 109 Miss. 835. Section 76, Hemingway's Code, will apply to any state, county, integral part of a county, or district thereof, or municipal or village officer. This court has held that a school district is an integral or unit of a county, or one of its subdivisions, and is controlled in the same manner and way as county matters. The trustees of schools, therefore, are officers of such subdivisions, and as such, are entitled to the same rights, benefits, and protection as county and state officers.

However, if the wrong interpretation has been given this statute, we respectfully move this court to await the return of process on the other interested parties to the judgment that did not participate in this appeal before passing upon the motion herein; and if then they believe that the appeal is not in proper form, we respectfully move the court to fix the amount of appeal bond necessary and give to appellant herein a reasonable time in which to file such bond with this court. And for authority we cite, Wills v. Howie Bros., 109 Miss. 568; Section 34, Hemingway's Code.

W. M. Lofton and J. P. Edwards, for appellees.

Under our law, every litigant, who feels aggrieved at the decision of the chancery court and desires to have his cause reviewed by the supreme court must make an appeal bond, unless he comes within one of the exceptions mentioned in section 94, Code of 1906, or some subsequent statute, which authorizes an appeal without bond. This section is the same as section 76 Hemingway's Code, which is the section mentioned in the petition for an appeal filed in this case by R. I. Tullos, which petition he files in lieu of an appeal bond. And this section does not give authority for an appeal without bond by a trustee of a public school, and does not remotely suggest such a thing. In this case, the state is not a party and neither is the county, or any city, town or village, or any of the officers thereof. A trustee of a public school is certainly not an officer of the state, county, or any city, town or village, but is merely an officer of a public school, and as such has no right under the law to appeal without giving bond, as the law cited does not provide that a trustee of a public school can appeal without bond. This statute does provide that "the several incorporated charitable or educational institutions established and maintained by the state, shall be entitled to appeal -- without giving an appeal bond," but this would not include a public school. It is true that the public school is an educational institution and is established and maintained by the state, but it is not "incorporated," but exists by virtue of the constitution and the laws of the state. A trustee of an ordinary public school cannot appeal to the supreme court without giving an appeal bond, and that a petition for an appeal will not be a compliance with the plain mandatory provisions of the statutes of the state.

The second cause why this motion to dismiss said cause should be sustained, is, it will be noted that the only party attempting to appeal is "R. I. Tullos,...