Zondt v. Town of Braxton

• Decision Date: 13 February 1928
• Docket Number: 26929
• Court: Mississippi Supreme Court
• Parties: VON ZONDT et al. v. TOWN OF BRAXTON et al. [*]

115 So. 557

149 Miss. 461

VON ZONDT et al. v. TOWN OF BRAXTON et al. ^[*]

No. 26929

Supreme Court of Mississippi

February 13, 1928

Division A

1. SCHOOL AND SCHOOL DISTRICTS. Decree validating bonds of separate school district held conclusive against collateral attack on validity of order creating district (Hemingway's Code 1927, section 4176 et seq.).

A decree pursuant to Laws Extra Session 1917, chapter 28 (Hemingway's Code 1927, section 4176 et seq.), validating bonds issued by separate school district, is conclusive in any subsequent proceeding wherein validity of bonds is called in question against any collateral attack on validity of order on which taxing district was created.

2 JUDGMENT. Decree validating school bond issue in taxpayers' proceeding held res judicata as to subsequent attack by different taxpayers (Hemingway's Code 1927 section 4176 et seq.).

Where in proceeding under Laws Extra Session 1917, chapter 28 (Hemingway's Code 1927, section 4176 et seq.), for validity of bonds issued by separate school district certain taxpayers appeared and objected to issuance of bonds and legality of creation of such district was therein litigated, the decree therein was res judicata as to subsequent collateral attack by different taxpayers.

3. JUDGMENT. Judgment on any question actually litigated and determined is res judicata in second action between same parties or their privies.

In a second action between same parties or their privies, although cause of action may be different, judgment in first action is res judicata in second as to any point or question actually litigated and determined in the first.

HON. T. P. DALE, Chancellor.

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

Suit by G. V. Von Zondt and others against the town of Braxton and another. Decree of dismissal, and complainants appeal. Affirmed.

Affirmed.

Argued orally by W. M. Lofton, for appellant, and J. P. Edwards, for appellee.

OPINION

SMITH, C. J.

This is an appeal from a decree dismissing an original bill. The bill was filed by the appellants against the town of Braxton and its tax collector, alleging that the tax collector was about to sell certain real property owned by the appellants for taxes thereon levied for the support of the public schools of the Braxton separate school district and for the payment of interest on bonds which had theretofore been issued by the district; that the order by which the district was originally created, and a second order by which its limits were extended, are void, for the reason that they fail to disclose the necessary jurisdictional facts. The prayer of the bill was that the tax collector be enjoined from selling the land for the collection of the tax. The original bill was twice amended. The first amendment alleged that the tax collector had sold the land for the school taxes claimed to be due thereon, that it had been purchased at the tax sale by J. V. Magee; and prayed that Magee be made a party defendant to the bill, and that the deed executed to him by the tax collector be canceled. The second amendment alleged that negotiable bonds for the support of its schools had been issued by the district, and were now in the hands of persons to complainants unknown, and prayed that these unknown holders of the bonds be made defendants to the bill by publication, and that the bonds be canceled and declared void, in so far as they affect the rights here asserted by the complainants. Publication was made in accordance with the prayer therefor.

One of the defenses relied on by the appellees here and in the court below is that, before the bonds were issued, they were validated by a decree of the chancery court under the provisions of chapter 28, Laws Extra Session 1917 (Section 4176 et seq., Hemingway's 1927 Code).

The contention of counsel for the appellants is that the decree validating the bonds does not preclude the appellants from here challenging the validity of the orders by which the school district was organized and its limits extended, for the reason that the statute on which the decree is based presupposes a legally created taxing district, and does not authorize the court, in validating the bonds, to inquire into the legality of the organization of the taxing district.

In Lincoln County v. Wilson, 125 Miss. 837, 88 So. 516, and King v. Board of Supervisors of Pontotoc County, 133 Miss. 494, 97 So. 811, the question here raised by counsel for the appellants was decided against them, in so far as it applies to the case presented by this record. In both of these cases, the court held that, in a proceeding, under chapter 28, Laws Extra Session 1917 (section 4176 et seq., Hemingway's 1927 Code), to validate bonds issued by a taxing district, it must appear from the record thereof that the order by which...