Consolidated Dist. No. 8 of Dallas County v. Hooks

• Decision Date: 21 July 1949
• Docket Number: 6868
• Citation: 222 S.W.2d 355
• Parties: CONSOLIDATED DIST. NO. 8 OF DALLAS COUNTY et al. v. HOOKS et al
• Court: Missouri Court of Appeals

222 S.W.2d 355

CONSOLIDATED DIST. NO. 8 OF DALLAS COUNTY et al. v. HOOKS et al

No. 6868

Court of Appeals of Missouri, Springfield

July 21, 1949

Not to be published in State Reports

Herman Pufahl, Bolivar, for appellants.

Don W Owensby, Buffalo, Haymes & Dickey, Springfield, for respondents.

OPINION

BLAIR

This is a consolidated school district election case, and the only question of fact, presented in the transcript, is the date upon which the directors of the Olive Point School District ordered an election to be held in that district, upon the question of consolidation with plaintiffConsolidated DistrictNo. 8.Appellants question the sufficiency of the petition.The admissibility of certain evidence, bearing on the date, when such election was held, is also raised.The admissibility of such testimony and the sufficiency of the petition need only be considered along with the consideration of such question of fact.

Appeal was first granted to the Supreme Court of Missouri and that Court transferred the case to this Court, on the ground that appellate jurisdiction was in this Court.The question of the appellate jurisdiction of this Court has been settled, and further reference thereto will not be made.

The petition was first filed in the Circuit Court of Hickory County, on April 19, 1948.The case went to the judicial circuit of Polk County, by consent of the parties.Honorable Sam C. Blair, regular judge of the 14th Judicial Circuit of Missouri, was called in and tried the case without a jury.

On July 9, 1948, such special judge made his findings of fact, and on the same date, rendered judgment, holding that the meeting of the Board of Directors of the Olive Point School District was held on February 24, 1948, as asserted by plaintiffs, and not on February 26, 1948, as claimed by defendants.He further held that plaintiffConsolidated School DistrictNo 8 was entitled to the money and property of Olive Point School District, and that the taxes levied by plaintiffConsolidated DistrictNo. 8, were valid and were a lien on all the territory of said Consolidated School District including the territory formerly within the Olive Point School District.Such judgment also enjoined defendants from further interference.

After unsuccessful motion for new trial, defendants appealed.The time for filing bill of exceptions was extended for 60 days from November 5, 1948.The bill of exceptions, as part of the transcript, was duly filed in the Supreme Court.The case was afterward transferred to this Court, as aforesaid, and is now before us for decision.

The pleadings are very long, occupying about thirty pages of the transcript, and will not be set out in this opinion, further than we deem necessary to decide the questions involved, since it was agreed, in the brief and on the argument, that the real and only question in the case was whether or not the election of March 11, 1948, properly authorized the inclusion within plaintiffConsolidated School DistrictNo. 8 of the territory, formerly included in the Olive Point School District.The decision of this question involves the decision and settlement of several points in the record.

While the motion for new trial charged the trial court with errors in the admission and exclusion of testimony, the brief makes no particular assignments of error, except as herein discussed, and such assignments, with that exception, will not be noticed.

The first assignment of error in the brief of appellants is that the petition itself did not state a cause of action, because it did not allege that the Olive Point School District adjoined plaintiffConsolidated School DistrictNo. 8.A careful search of the pleadings shows that no direct allegation that such districts adjoined was made in the petition itself.The facts bearing on such assignment must be gathered from all of the facts stated in the pleadings.

In the argument, it was stated by appellants' counsel that the two districts did in fact adjoin.One cannot read the lengthy pleadings and the transcript without being convinced that such school districts did in fact adjoin.While Section 10484, R.S.Mo.1939, as amended by the laws of 1947, at pages 507, 508, Mo.R.S.A. § 10484, requires that school districts actually adjoin, before they can be consolidated, we do not think the fact that they so adjoin need be set out in the petition itself, especially where such fact is admitted.The words 'such fact' used in the statute, refer only to the desire of a school district to be attached to another district for school purposes.The petition here under review, even though it did not so state, was sufficient to authorize the holding of the election at the time apecified.

Appellants attack the petition in paragraph 3 of their assignment of error No. 1, because the petition did not designate the signers thereof as legal voters of the Olive Point School District.The same thing may be said of that provision in the statute.The omission of a statement in the petition that the signers thereof were legal voters of the Olive Point School District, especially where it was admitted that all of such signers were in fact legal voters, did not invalidate the petition itself.The words 'such fact' refer to the desire of the school district to be attached for school purposes, and those words do not refer to the petition itself.

The second paragraph of assignment of error No. 1, is that the meeting of January 31, 1947, made it impossible for the question of annexation to be again presented until January 31, 1949.

The statute governing this proceeding is Section 10484, R.S.Mo.1939.The law, as amended in 1947, provided that such amendment should go into effect and be in force on June 23, 1947.Laws of 1947, page 508.Hence, the law, as amended in 1947, was not in force and effect in January, 1947, and did not govern the meeting said to have been held in January, 1947, and, consequently, did not affect the meeting held in February, 1948.This assignment of error is overruled.

The chief reliance of appellants seems to be on the action of the trial court in holding, as a fact, that the election in Olive Point School District was held on February 24, 1948, and not on February 26, 1948.The former date gave 15 days' notice of such election, and the latter date did not give such notice.

This was largely a question of fact, and, as there was evidence regarding both dates, we see no reason for substituting our judgment upon such question of fact for the judgment of the trial court, even though an appellate court has the right to do so, in a proper case.Laws of 1943, page 388, § 114(d), Mo.R.S.A. § 847.114(d).

The statement of appellants, that the notices of such election were prepared on February 27, 1948, is uncontradicted, is taking entirely too much liberty with the testimony of the many witnesses to the contrary.

Appellants say that the trial court erred in admitting any testimony whatever in contradiction of the record of the clerk of such meeting said to have been made that night.The minutes of such meeting were said to have been prepared the night of such meeting by the clerk of the School Board.She did not specify the date, at the time such meeting was held.The trial judge evidently did not think that such minutes, showing a different date from February 24, 1948, were prepared by the clerk of the Board on the night of February 26, 1948.There was abundant evidence in the record to justify his finding that such meeting was in fact held on the night of February 24, 1948, and not on the night of February 26, 1948, as claimed by defendants.That the trial court admitted and believed testimony to the contrary, is very clear in this record.Appellants cite a large number of authorities and cases on this proposition.

Appellant first cite 22 C.J. Secs. 1380, 1421 and 1426;32 C.J.S., Evidence, §§ 851, 875, and 881.Undoubtedly, that rule is true of judgments and court records, which are made at the time.Section 1426, as cited by appellants, is that 'The records of a school district are within the protection of the rule and cannot be contradicted or varied by parol or extrinsic evidence.'

That section of Corpus Juris, among others, cites Trustees of Common School District No. 50 v. Fishback, 49 S.W. 29, 20 Ky.LawRep. 1198.In that casethe Trustees were not permitted to testify as to their want of recollection of an entry shown by the minutes made at the time the record was made.Cowley v. School Dist. No. 3 of Harrisville Tp.,130 Mich. 634, 90 N.W. 680.In that case, a teacher was not permitted to show a contract of employment, when a record made at the time showed just the contrary fact.She was not permitted to dispute the record, under such circumstances.In Brooks v. Franconia School Dist.,73 N.H. 263, 61 A. 127, a witness was properly prevented from testifying as to what the intention was when the school board, as shown by the record, adopted a given rule.

In Cameron v. School Dist. No. 2 in North Hero, 42 Vt. 507, it was held that the record, made at the time, could not be disputed later, although the plaintiff was permitted to recover on the ground of ratification.

22 C.J. Sec. 1426;32 C.J.S., Evidence, § 881, announces no rule other than that the courts have not permitted a witness to testify to facts different from those shown by the record of the school board, made at the time.It does not hold or say that a record, made at a different time, cannot be shown to be wrong.If such was the rule, it would open wide the doors of fraud.

In ex parte Seward, 299 Mo. 385, 253 S.W. 356, 359, 31 A.L.R. 665 while the court held that the legislative record could not be disputed by oral testimony, the court did hold that a...