City of Greenwood v. Henderson , 84 Miss. 802 ( 1904 )

Calhoon, L,

delivered the opinion of the court.

We are constrained to hold that an appeal from a municipal board to a circuit court can be heard only on a bill of exceptions “embodying the facts and decisions of the board,” under § 19, Code 1892. The appeal must be heard and decided on the record so made, and cannot be considered on oral testimony by agreement of the parties, whether or not confined to witnesses examined before the board. It is jurisdictional under the statute.

Reversed and remanded.

“It is agreed by said board and said protestants that there are of record the plats of the Douglass part, Henry addition, Johnson- survey, and Moore addition to the former town, now city, of Greenwood, and the only original plat not of record is the Howard part.

“It is further agreed that a map of all parts of said town, now city, of Greenwood is, and has been, in the mayor’s office, made by a competent surveyor. Said map has not been adopted as the official map.”

Our opinion is that this bill of exceptions properly carried the case to the circuit court, and it ought there to have been heard on the bill of exceptions. The circuit court had jurisdiction because the bill of exceptions was a part of its record. The question of its sufficiency to settle the case in favor of the protestants is another and a different matter from one of jurisdiction.

We insist that the bill of exceptions was sufficient to show that the municipal authorities of Greenwood were without power in the premises; and, being without power, its judgments should have been vacated by the circuit court, as was done. The only statutory or other power in the premises conferred by the legislature on municipalities is found in ch. 42, Laws Miss. 1898, p. 63, and it will be noted that this statute does not confer such power on all municipalities. The statute simply authorizes "the boards of mayor and aldermen and boards of mayor and councilmen of any cities, towns, and villages in this state, the survey or surveys, maps and plats thereof, which have been lost or destroyed without having been recorded, or where they have no such surveys, maps, or plats ” to act in the premises by providing for a new survey and maps. The city of Greenwood is shown by the bill of exceptions not to be within the terms of this statute. The agreement, a part of the bill of exceptions, negatives the idea that the previous survey or surveys, maps and plats of Greenwood had been lost or destroyed without having been recorded, and it also negatives the idea that there were never before maps and surveys of Greenwood. Whatever may have been testified to by witnesses orally cannot be conceived to have negatived this written agreement of the j>arties litigant to this suit. An examination of their testimony in this record is convincing that they did not negative the agreement, which is a part of the bill of exceptions.

We have, therefore, this case: An appeal was presented from the board of mayor and aldermen of the city of Greenwood to the circuit court. This appeal is based upon a duly signed bill of exceptions made a part of the record. It is true that the bill of exceptions contains an agreement that the witnesses who had testified before the municipal court might testify orally in the circuit court, but the bill of exceptions does contain an agreement between the parties litigant made before and in the presence of and filed with the board of aldermen, showing previous maps, plats, and surveys of the city of Greenwood, and that they were still in. existence. This showing, we contend, was sufficient for the determination of this case in favor of the appellees. The agreement showed clearly that the municipal authorities were without power under the statute; and being without power, their judgment, whatever it was in the premises, should have been reversed, vacated, and. annulled by the circuit court; and this being true, the right result was reached in the circuit court; and the right result having there been reached, this court ought to have affirmed its judgment.

This suggestion of error was loy the court overruled.