Martin v. Gill

• Decision Date: 13 June 1938
• Docket Number: 33246
• Court: Mississippi Supreme Court
• Parties: MARTIN v. GILL et al

181 So. 849

182 Miss. 810

MARTIN v. GILL et al

No. 33246

Supreme Court of Mississippi

June 13, 1938

Division B

1. APPEAL AND ERROR.

Where appellant attacked an apparently valid order of a school board creating a school district by his pleadings as being void for fraud and other reasons de hors, but none of the witnesses was permitted to answer, and appellant did not state in record what answers or testimony would have been if witnesses had been permitted to answer, alleged error in excluding testimony could not be considered by Supreme Court.

2. APPEAL AND ERROR.

A party seeking reversal because of excluded testimony must place witness on stand, ask questions, and have answers made of record, or witness must be presented, and there must be a specific statement of what answers or testimony would be, so that the reviewing court may see from the record itself whether the offered evidence would be material and whether its exclusion was prejudicial.

3. APPEAL AND ERROR.

Under rule requiring witnesses' answers to be made of record or requiring appellant complaining of exclusion of testimony to state in record what testimony would have been, it is not enough to show the general tenor of the offered evidence, but the showing must be specific so that the reviewing court may see that the proposed evidence would be responsive in terms of facts, that it would be believable, and that, if believed it would sustain the issue, particularly where charges of fraud are involved.

4 FRAUD.

Charges of fraud must be supported by clear proof which is more convincing than a mere preponderance of the evidence.

Suggestion Of Error Overruled August 9, 1938.

APPEAL from the chancery court of Rankin county.

HON. A. B. AMIS, SR., Chancellor.

Action between George D. Martin and J. B. Gill and others. From the judgment, George D. Martin appeals. Affirmed.

Affirmed.

Gore & Armstrong, of Jackson, for appellant.

As to Martin's attack on this order, we maintain: (1) That a fraudulent order is subject to collateral attack, whether the fraud involves moral turpitude, a violation of the statutes and constitution, as in eliminating the Smith County land, patrons and school children, thus depriving them of the benefit of a four months school term, the assumption of jurisdiction by the Rankin County board over a line school, falsely reciting and adjudicating that a majority of the qualified electors signed the requisite petitions, that the proposed district was composed of all land theretofore constituting the two consolidated school districts, in the face of the bald statement in the order itself that the Smith territory should be eliminated, or one void on account of any other kind of fraud in its procurement or rendition, either or both, which involves the assumption, as well as the exercise of jurisdiction. (2) That this attack by Martin is not collateral. (3) That an affirmative defense involves pleading a valid order, and that, although a judgment of a tribunal of purely statutory, special and limited jurisdiction, which is regular on its face, is presumed to be valid, this presumption may be overthrown by pleading and proving the facts which render it void, whether on direct or collateral attack.

Hurd v. Smith, 5 How. 562; Weems v. Vowell, 122 Miss. 342, 84 So. 249; Plummer v. Plummer, 37 Miss. 185; Richardson v. Brooks, 52 Miss. 118; Herring v. Sutton, 86 Miss. 283, 38 So. 235; McCraney v. New Orleans & Northeastern Railroad Co., 128 Miss. 248, 90 So. 881; Christian v. O'Neal, 46 Miss. 669; Hinton v. Perry County, 34 Miss. 536, 36 So. 565; Carr v. Miller, 162 Miss. 760, 139 So. 851; Horne v. Moorehead, 169 Miss. 362, 153 So. 668; Bergman v. Hutcheson, 60 Miss. 872.

Complaint is made in the brief of the appellees that no proof of the facts alleged in the bills was made. This record will show that every effort short of insulting the trial court was made to prove the facts. Furthermore, we are not to blame for the colic that now seems to afflict counsel. They were entirely too free with objections at the trial.

There is no merit in the contention that we did not offer to prove the facts set up in the bill. Whenever a court rules that any evidence, of whatever kind offered, is not admissible because the attack made by the pleadings is collateral, no obligation rests on counsel to state every detail of the proof he would like to introduce, if the court would permit him to do it. The objections were based on the theory of collateral attack. The objection, standing alone, amounts to nothing, in stating that the testimony offered was incompetent. The reason behind it had already been stated, that the proof constituted a collateral attack. The question before this court is not whether a prolonged and detailed statement of what was expected to be proved should have been made, but whether the court erred in not permitting the complainant to prove anything.

Lotterhos & Travis and Vardaman S. Dunn, all of Jackson, for appellees.

Even if we should concede for the sake of argument that appellant's attack upon the special district is not collateral, there is no competent evidence to sustain his contentions and no sufficient offer of proof thereof.

The case of Gulf, Mobile & N. R. Co. v. Willis, 171 Miss. 732, 158 So. 551, is conclusive authority that appellant wholly fails to preserve any point subject to review by this court. In this case Justice GRIFFITH, speaking for the court,...