Harrell v. Pine Grove Consolidated School District ( 1939 )

MacIntyre, J.

The bill of exceptions, as finally corrected and certified by the trial judge, states: "Be it remembered in the case of the State of Georgia vs. Pine Grove Consolidated School District, the same being a petition to confirm and validate bonds in the sum of twenty thousand dollars ($20,000), filed to the May term, 1938, for the superior court of Lowndes County, the court did, on the 19th day of November, 1938, try and determine said cause.” Paragraph 1 of the bill of exceptions assigns error on the overruling of the demurrer to the petition. This demurrer was properly overruled. Even if it is conceded that paragraph 2 of the bill of exceptions properly raises the question "that seventy-six votes cast in favor of the bonds were not cast by a majority of the registered voters of said school district,” the exception is not meritorious, for the duty to purge the list of registered voters is imposed upon the registrars. "It is nowhere provided that the duty of purging the lists of registered voters required to be furnished to the election managers shall be imposed upon the judges of the superior courts.” Fairburn School District v. McLarin, 166 Ga. 867, 869 (144 S. E. 765). The judges of the superior courts can not "deduct disqualified voters from the number of voters appearing upon the registration list furnished by the tax-collector to the election managers, in order that the number of votes cast for bonds shall thereby constitute a majority of the registered voters.” Buchanan v. Woodland Consolidated School District, 168 Ga. 626 (2) (148 S. E. 663).

Paragraph 3 of the bill of exceptions, as finally corrected and certified by the trial judge, is here quoted verbatim et literatim as folloAvs: “That the judgment of the court confirming and validating said bonds was contrary to laAv for the reason that one hundred and seventeen ballots were deposited in the ballot box and that seventy-six votes were not two thirds of said number; although two of said ballots appearing not to have had stricken therefrom the AA^ords: 'For Schoolhousel or the words 'Against Schoolhouse’ appearing thereon, that is to say, neither of such ballots shoAving on AAdiich side of the question being Aroted on at the bond election Avas intended to be voted for or against by the voters casting such two ballots, such two ballots were thrown out and not counted by the managers of the election as voting for or against bonds and the two voters, who cast such ballots, were not counted by the election managers as having voted at the election; and although the election managers threw out and did not count the ballot of J. N. Alexander and did not count him as having voted at such election, because his name did not appear on the certified list of registered voters of said district furnished to the managers of the election by the tax-collector or tax-commissioner of Lowndes County ten days before such election was held; thereby reducing, according to the decision of the election managers, the number of qualified voters voting at said election to 114 instead of 117, which latter number plaintiffs in error contend is the correct number of qualified voters voting at said election; and although on the day before the election the tax-collector or tax-commissioner delivered to J. N. Alexander a certificate that he was a qualified voter in the Pine Grove School District, which certificate was delivered to the election managers on the day of the election by J. N. Alexander, even though his name Avas not on the list of voters, certified by the registrars of said county and the tax-collector or tax-commissioner and furnished, to the election managers ten days before the election.” Paragaph 4 is "that the judgment of the court confirming and validating said bonds was contrary to law and without evidence to support.”

As we construe paragraph 3, it is merely a statement of the contentions of the plaintiffs in error, and the judge merely certified that the plaintiffs in error made these contentions, but the judge did not certify that the facts set out in these contentions are in fact true and correct. There is a purported brief of evidence in the record, but it can not be considered by this court for the trial judge has not approved it or any other brief of evidence. Fruit Dispatch Co. v. Roughton-Halliburton Co., 9 Ga. App. 108 (70 S. E. 356). The plaintiffs in error having interposed objections based upon facts, the proof of which does not appear in the record by evidence properly before the court, the objections in this paragraph depend for their existence upon evidence aliunde the record. The intervenors in the court below, now the plaintiffs in error, did not carry the burden placed upon them of proving facts which would support their contentions, which the judge, in paragraph 3 of the bill of exceptions, certified was made by them. The assignments of error as to these contentions in paragraph 3 require a consideration of the evidence and, the purported brief thereof not having been approved, it is well settled that this court can not consider this assignment. Powell v. Consolidated School District, 26 Ga. App. 135 (105 S. E. 616).

Moreover, even if we consider paragraph 3 or any part thereof as a recital of fact-, it conflicts with the specific finding of fact as stated in the judgment. Therefore there is a conflict between the bill of exceptions and the record, and the bill of exceptions must yield to the record. In the judgment, the judge stated that he found from the evidence that a specific fact existed, and in the bill of exceptions he certified that this specific fact does not exist. If we had a brief of evidence, this court could determine whether the evidence authorized such a finding. It should be noted that the judgment is not a general judgment such as states only one finding which is a final conclusion of the court, but here the judge states in his judgment that he specifically found from the evidence that certain, separate, component facts have been established and that each of these component facts, when taken together, make up the whole of what the statute states constitutes a prima-facie case for the validation of the bonds. Powell v. Consolidated School District, supra. In other words, the judge specifically states in his judgment that he made certain specific findings of fact after having heard the evidence as to each of such findings and, basing these findings of fact thereon, he made up his judgment by applying the law to these facts so found.

We overrule the amended motion to dismiss the writ of error on the ground that neither of the intervenors, now the plaintiffs in error, was a voter and taxpayer or resident of the district in question, because the judgment specifically found as true the facts alleged in the petition and answer and in all exhibits, including exhibit “D.”

Unless the statement in the judgment that, “upon consideration of the proof submitted in support of all the allegations of the petition and answer, and objections being made to the issue of the bonds described in said petition. . . It appearing further that all the facts alleged in said petition and answer, and in the exhibits thereto attached and made a part thereof, are true . . ,” is a finding that the voter’s list referred to in paragraph 3 of the answer and made a part thereof is a finding of the truth thereof by the court, there is no proof that the intervenors were voters and taxpayers and had a right to intervene. Applying the same rule, it follows that the judgment specifically found as true the facts alleged by way of exhibit “B” in paragraph 3 of the answer, which exhibit stated, “that of the total number of votes cast at said elections, they were cast as follows: For schoolhouse—that is to say for the issuance by said school district of the said ‘1938 Pine Grove Schoolhouse bonds,’ 76 votes; Against schoolhouse—that is to say against the issuance by said school district of said ‘1938 Pine Grove Schoolhouse bonds,’ 38 votes; and, Whereas, it appears from said consolidation made as aforesaid that more than two thirds of the voters actually voting in said election have voted in favor of the schoolhouse.” This is in effect a finding by the judge that 114 votes actually voted in said election, and that the 76 voting for bonds were more than two thirds of the voters actually voting. If we should consider paragraph 3 of the bill of exceptions as a recitation of fact instead of a recitation of plaintiffs in error’s contention, it seems to us that the bill of exceptions would be stating that 117 ballots were deposited in the ballot box, instead of 114 as stated in the judgment, and of course in such a case where there is such a conflict, the judgment, being a part of the record, should prevail. None of the other assignments of error is meritorious.

Judgment affirmed.

Broyles, O. J., concurs. Guerry, J., dissents.