Opinion
No. 33246.
June 13, 1938. Suggestion of Error Overruled August 9, 1938.
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.
APPEAL from the chancery court of Rankin county; HON. A.B. AMIS, SR., Chancellor.
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, remarked as follows: "The rule has been long established in this jurisdiction that a judgment will not be reversed for error unless it be shown by the record that the error was actually prejudicial and harmful to the rights of the complaining party. Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896; Goins v. State, 155 Miss. 662, 124 So. 785. Consonant with that rule, when a party would seek a reversal because of excluded testimony, he must either place the witness on the stand, ask the questions, and have the answers made of record, or else the witness must be presented, and there must be a specific statement of what the answers or testimony of the witness would be, if allowed, so that the court may see from the record itself whether the offered evidence would be material and of benefit to the merits of the case, and whether its exclusion was actually harmful and prejudicial to the offerer. Bardley v. Howell, 161 Miss. 346, 133 So. 660, 134 So. 843."
Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; Miss. Central Ry. Co. v. Robinson, 106 Miss. 896, 64 So. 838.
Argued orally by W.E. Gore, for appellant, and by Cecil Travis and Vardaman S. Dunn, for appellee.
If the order of the school board made on July 23, 1937, creating the Puckett Special Consolidated School District, was a valid order, then under the decision in Colmer ex rel. Phillips v. Alexander, 161 Miss. 691, 137 So. 787, appellant had no case. The order is valid on its face, but appellant attacked it, by his pleadings, as being void for fraud and other reasons de hors. Upon the trial, when appellant offered his witnesses to prove the avoiding facts de hors, appellees objected on the ground that the evidence offered would be a collateral attack upon the said order, and all the objections were sustained on that ground. None of the witnesses were permitted to answer so as to make their answers of record, nor did appellant make any statement in the record of what the answers or testimony of the witnesses would be, if permitted to answer, wherefore under the authority of Gulf, M. N. Railroad Co. v. Willis, 171 Miss. 732, 157 So. 899, 158 So. 551, and a long line of similar cases, the record is not presented in such manner as to authorize us to act upon the assigned error.
Appellant has urged in argument that both the court and opposing counsel well understood from the form and frame of the interrogatories addressed to the witnesses, as well by the pleadings, what was the object of the testimony sought to be introduced, and what the scope and effect of it would be, and that being thus informed the purpose of the rule was satisfied. A careful examination of the cases will disclose that the rule goes substantially further. As stated in the case last cited, the rule is that "when a party would seek a reversal because of excluded testimony, he must either place the witness on the stand, ask the questions, and have the answers made of record, or else the witness must be presented, and there must be a specific statement of what the answers or testimony of the witness would be, if allowed, so that the court may see from the record itself whether the offered evidence would be material and of benefit to the merits of the case, and whether its exclusion was actually harmful and prejudicial to the offerer." See, also, Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295, and Mississippi Cent. Railroad Co. v. Robinson, 106 Miss. 896, 64 So. 838.
It will be observed, upon a review of the cases, that it is not enough under the rule that the general tenor or trend of the offered evidence shall be shown, nor in any case is it sufficient merely to propound questions to the witness or witnesses. The showing must be specific to the extent that the court may see that the proposed evidence would be actually responsive in terms of facts and not of mere conclusions; that it would be believable; and that if believed it would be sufficiently definite and substantial to sustain the issue, and particularly is this true when charges of fraud are involved, which must be supported by proof which is clear and more convincing than a mere preponderance.
We have carefully examined all the assignments and are of the opinion that there is no error shown sufficient to work a reversal.
Affirmed.