#### Morrell v. Hill, Treasurer.

4-9452

.237 S. W. 2d 467

Opinion delivered March 19, 1951.

Yates dt> Yates and Wilson-S Starbird, for appellant.

Jeta Taylor, John Cravens and Marh E. Woolsey, for appellee.

Gteorge Rose Smith, J.

This is an action by sixty-two patrons of Pleasant View School District No. 4 to set aside a judgment by which the Franklin Circuit Court found that on March 1, 1949, the district had at least 350 children of school age and was therefore not automatically dissolved on June 1 of that year. Ark. Stats. 1947, § 80-426; Stroud v. Fryar, 216 Ark. 250, 225 S. W. 2d 23. This appeal is from the trial court’s refusal to vacate its earlier judgment.

*553After the above statute was adopted in 1948 this district annexed six other districts in an effort to avert dissolution for want of 350 enumerated pupils. The county-board of education took the position that these annexations had not brought the district’s student population up to the required number. The district then sued for a writ of mandamus to compel the county board to recognize the fact that the district had complied with the statute. By agreement the case was heard by the trial judge in his chambers at Van Burén, and a judgment was entered granting the writ of mandamus. That is the judgment now under attack.

Three days later the present appellants filed this suit to vacate the judgment for fraud. The gist of their complaint is that the earlier case had been set for trial at Ozark, where some of the appellants were prepared to testify in opposition to the suit, but by fraud the case was wrongfully heard at Van Burén at a time when the court was not lawfully in session. Upon the filing of this complaint the district asked us to prohibit the maintenance of the suit, on the theory that the judgment in the mandamus proceeding had settled the issues adversely to these appellants. We refused to issue a writ of prohibition, holding that the appellants were entitled to be heard upon their allegation that the first judgment had been obtained by fraud. Pleasant View Sch. Dist. No. 4 v. Kincannon, Judge, 216 Ark. 843, 227 S. W. 2d 941. That opinion became the law of the case, and it left open for further consideration only the question of whether the original judgment was obtained by fraud.

The court below held that the accusations of fraud were not proved, and we agree with that view. The principal charge of fraud is based upon the fact that the earlier case was tried in chambers at Van Burén instead of in the courtroom at Ozark. But it was within the power of the parties to that suit to agree, as they did, that the cause should be tried in chambers in the county of the judge’s residence. Ark. Stats., § 22-362. All that these appellants have shown is that they were interested in the outcome of the earlier case and would have liked *554to be beard on tbe issue of tbe number of enumerated children in tbe district. But tbe appellants were not parties to that case, did not intervene in it, did not employ an attorney to act in their bebalf, and did not even communicate tbeir desires to tbe parties or tbe attorneys in tbe case. In view of these circumstances we have no basis for saying that tbe parties to that suit committed a fraud on tbe court by agreeing to try it at Van Burén.

It is also said that the original judgment was procured by fraud because tbe parties introduced affidavits instead of calling tbe witnesses to testify in person. But this too is a matter that lay within tbe control of tbe litigants. Had they chosen they could have agreed upon a statement of facts without even obtaining affidavits. Instead, they agreed to treat tbe affidavits as depositions. This amounted to nothing more than a waiver of tbe privilege of cross-examining adverse witnesses. We do not see how tbe appellants, as strangers to that case, are in a position to criticize tbe course that tbe litigants took, much less to say that it was a fraud on tbe court.

Affirmed.