Bryant v. Board of Sup'rs of Yalobusha County

Decision Date10 December 1923
Docket Number23772
Citation98 So. 148,133 Miss. 714
PartiesBRYANT v. BOARD OF SUP'RS OF YALOBUSHA COUNTY
CourtMississippi Supreme Court

Division B

(Division B.) January 1, 1920

1 HIGHWAYS. Board of supervisors have jurisdiction only over that territory described in petition.

In proceedings to establish a separate road district in accordance with chapter 277, Laws of 1920, the territory stated in the petition confers upon the board of supervisors only jurisdiction over that territory therein named.

2 HIGHWAYS. Board of supervisors could not include in district territory not described in petition.

Where the petition includes that part of section 6, township 23 range 6 east, lying north of Scuna river, the board of supervisors have no jurisdiction to include in this district all of section 6, when the facts show that a part of section 6 lies south of this river.

3 HIGHWAYS. Order of board of supervisors establishing district held not finding that all of section lay north of river.

This order of the board of supervisors, attempting to include in this district all of section 6, is not a judicial finding that all of this section lies north of Scuna river.

4. HIGHWAYS. Order establishing district subject to attack in proceeding to validate bonds.

In proceedings to validate bonds of this district, one resisting the proceedings may show by pleadings and proof that the order of the board of supervisors is void, because, under the above petition and order of the board establishing the district, a part of section 6 as a matter of fact lies south of Scuna river, and the board had no jurisdiction to include this territory within the road district.

5. HIGHWAYS. Order establishing road district to include more territory than was described in petition is void.

The order of the board of supervisors in establishing a road district, which includes therein more territory than contained in the petition, is void, and may be attacked in validation proceedings.

HON. JAS. G. MCGOWAN, Chancellor.

APPEAL from Chancery court of Yalobusha county, HON. JAS. G. MCGOWAN, Chancellor.

Proceedings between W. C. Bryant and the board of supervisors of Yalobusha County. From a decree validating proposed bond issue of the district court, the former appeals. Reversed and remanded.

Reversed and remanded.

Cowles Horton, for appellant.

The first question presented by this record is whether the board ever acquired jurisdiction to make the orders creating this road district and providing for this bond issue. If it did not, or if it failed to exercise its jurisdiction as provided by the statute, its proceedings are not merely irregular but absolutely void. Under this act the board could acquire jurisdiction only in one way, viz: by the presentation of the proper petition seeking the creation of the district and issuance of the bonds. Laws 1920, ch. 277, sec. 2.

The petition, under this statute, not only confers, but also limits, the jurisdiction which the board can exercise, and I do not apprehend that anyone would claim that the mere filing of a petition for the creation of a certain described district would invest the board with authority to create a district which was not in conformity with the territory embraced in the petition.

If the district created by the board was smaller than the one petitioned for, it would not be in conformity with the petition, and therefore, void (Bowles v. Leflore Co., 85 Miss. 390; Word v. Supervisors, 114 Miss. 457) and if larger the board would be acting as to the added territory without any petition at all and its orders would likewise be void for this reason. Evans v. Wright, 126 Miss. 712; Wallace v. State, 104 Miss. 94. This is bound to be true in the case at bar, for the reason that the board is required to proceed in the manner provided by this act, or its proceedings cannot be valid. Board v. Weatherford, 114 Miss. 270, Craft v. Desoto Co., 79 Miss. 618, Hawkins v. Carroll Co., 50 Miss. 735, County v. Bunckley, 85 Miss. 713.

Without jurisdiction of the res and to render the particular judgment rendered, no judgment of any court will be valid, whether its jurisdiction is a general or a special and limited one.

In Shriver's Lessee v. Lynn, 11 U.S. (L. Ed.) 172, a sale was made of certain property ordered to be sold and one hundred acres of other land. Thereafter the sale of the whole property was confirmed, and the question arose whether it was subject to attack. The court held that it was and, making reference to the fact that "the petition did not pray for the sale of this land," made the further statement that "at the time the decree was entered, that tract was no more subject to the power of the court than every other tract in the county,"--because it was not embraced in the petition and the court had never acquired any jurisdiction over it.

Our own court, in Insurance and Realty Company v. Fire Ins. Co., 113 Miss. 545, applying the principle, made the statement that "the thing, the res, must first be brought under the control of the court by proper process; then the judgment can only go against the thing under the control of the court." It appearing in that case that the "thing" was "not under the control of the court" it was further stated that "the court has no jurisdiction."

Without further citation of authority on this unquestionable proposition, we submit that the board did not acquire jurisdiction, by this petition, to create the district which it undertook to create by its orders.

This petition limits the district to that part of section six in township 23, range 6 East, that lies north of Scuna river. Under this petition, no grantee would ever take title to that portion of this section lying south of the river, no lawyer would approve a title to "all of section six" on an abstract thereof covering that portion thereof embraced in the petition, and no court on earth would acquire jurisdiction or "control" of the whole of this section on a bill or declaration embracing only that part of the section which lies north of the river.

Nevertheless the board, in its orders, created a district specifically and positively embracing "all of section six" of this township and range, and, if the district shall stand at all, these bonds will stand as obligations against the property in this section south of the river as well as north of it.

The learned counsel for the appellee did not claim on the trial below that the board had the right to add territory to the district as petitioned for, but their contention was that these proceedings were immune from a collateral attack, and that this was a collateral attack.

The difference between judgments that are void and subject to collateral attack and those which are merely irregular and immune therefrom is well explained in Theobold v. Deslonde, 93 Miss. 208, and this court there distinctly shows that where a court has acted without, or beyond, its jurisdiction, its judgment, being void, is subject to attack anywhere. This, indeed, is elementary. Freeman, Judgments (3 ed.), sec. 117; Lester v. Miller, 76 Miss. 309; Harris v. State, 72 Miss. 960; Lake v. Perry, 95 Miss. 573; Ex parte Burden, 92 Miss. 14.

In 15 R. C. L., page 604, sec. 43, it is stated that a "judgment will be void which is a departure from the pleadings, and based upon a case not averred therein." If, therefore, the board had taken on itself to amend this petition so as to make it conform to the district as created by the board its proceedings would still be invalid, since it would have no right to make such an amendment itself (See Trustees v. Covington Co., 115 Miss. 133-4) and we insist that it could not do "by indirection what it could not do directly." Hamilton v. Board, 96 So. 466.

In Bank v. Martin, 9 S. and M. 621, the court observes that "an order, judgment or decree is void when rendered by a court which has no jurisdiction of the subject-matter, or of the parties. Both must concur to make the proceeding valid."

Whatever may be the presumption applicable to orders of this character, the presumption arises not merely from the orders themselves but from the whole record, and the appellant has just as much right to show the invalidity of the orders by the petition as by the contents of the orders themselves. This is true, because the petition constitutes a part of the record and the only part thereof whereby jurisdiction, under this act, can be conferred.

In the case of Borroum v. Purdy Road District, 95 So. 679, Judge ETHRIDGE refers to the fact that the whole record must be examined and that the petition constitutes a part thereof.

Appellant offered to show in this case the amount of territory which the board had added to the district in violation of its jurisdiction under this petition and contrary to the petition itself. This proof, if allowed to be made, would not be in contradiction of the record but in support thereof, for the reason that the petition shows on its face that there is a part of section six which does not lie north of the river, and the order of the board does not declare that such is not a fact.

If the board acted beyond its authority in regard to three acres of land, its proceedings must stand on the same principles as would apply if the added territory had been larger. There can be no half-way ground; the proceedings are either valid or invalid, without regard to the amount of property over which the board might thus arbitrarily assume jurisdiction. See: Koch v. Bridgers, 45 Miss. 258; Monroe Co. v. Minga, 127 Miss. 716; Gibson v. Currier, 83 Miss. 253; Ellis v. Tillman, 125 Miss. 686; Planters Merc. Co. v. Braxton, 120 Miss. 490.

Appellee will rely, as we understand its position, on the cases of Dye v. Mayor, 119 Miss. 359; Lincoln...

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