1967 Senior Class of Pekin High School v. Tharp

• Decision Date: 12 December 1967
• Docket Number: No. 52607,52607
• Citation: 154 N.W.2d 874,261 Iowa 539
• Parties: The 1967 SENIOR CLASS OF PEKIN HIGH SCHOOL, Mark Curtis, by next best friend, Kenneth Stein; Davis Bottorff, by next best friend, Warren Bottorff; Linda Curtis, by next best friend, Virgil Curtis; Jeanine Chacey, by next best friend, Clair Chacey; Robert Adam by next best friend, Elmer Adam, Appellants, v. C. Eldon THARP et al., Appellees.
• Court: Iowa Supreme Court

Page 874

154 N.W.2d 874

261 Iowa 539

The 1967 SENIOR CLASS OF PEKIN HIGH SCHOOL, Mark Curtis, by next best friend, Kenneth Stein; Davis Bottorff, by next best friend, Warren Bottorff; Linda Curtis, by next best friend, Virgil Curtis; Jeanine Chacey, by next best friend, Clair Chacey; Robert Adam by next best friend, Elmer Adam, Appellants, v. C. Eldon THARP et al., Appellees.

No. 52607.

Supreme Court of Iowa.

Dec. 12, 1967.

Rowe & Rowe, Fairfield, and Life, Davis & Life, Oskaloosa, for appellants.

Bailey C. Webber, Ottumwa, for appellees.

MOORE, Justice.

This is a replevin action brought by five members of the senior class of Pekin High School against the school board and certain school officials claiming the right of immediate possession to funds held by defendants in the amount of $729.22. The caption of the petition indicates the 1967 Senior Class of Pekin High School is a plaintiff. The allegations of the petition, however, clearly state the plaintiffs are five members of the class and ask they be given immediate possession of the funds involved. Our reference to plaintiffs is therefore to the five individuals named in the caption who being minors brought this action by their next friends.

Plaintiffs' original petition alleges they are members of the 1967 Senior Class of Pekin High School; they are entitled, as absolute owners, to the immediate possession of the senior class funds in the amount of $729.22; demand therefor had been made upon defendants who had refused to turn over said funds to plaintiffs; said funds had been acquired by payment of dues into the class fund and profits from sale of magazines by the class and that defendants retain said property under a claim they have a right to state how said property should be disposed of although defendants claimed no ownership.

The prayer asks that a writ of replevin issue and said property be immediately seized and delivered to plaintiffs and for judgment confirming their right to possession.

Defendants' attack included a motion to dismiss the petition at plaintiffs' costs for the following reasons: '1. No affidavit is filed in support of the purported class action as required by R.C.P. 44.

'2. The petition states no ultimate fact, but only a legal conclusion as to immediate right of possession to the claimed assets described in Paragraph 2, and rather alleges in Paragraph 7 that said funds were paid into a class fund by dues and funds derived from sale of magazines by the class of 1967, and said petition states no ultimate facts entitling plaintiffs or any of them to immediate possession of said fund, or any portion thereof.

'3. The petition is for a fund of money, but alleges no fact showing segregation and identification of said fund sufficient to support a petition for replevin of the money, specifically segregated and set aside or specially identified; and by reason of which, an action of replevin does not lie.

'4. That said petition, and ultimate facts stated therein, do not plead a cause of action against the defendants or any of them.'

Plaintiffs then filed an amendment to their petition alleging the funds had been turned over to the school superintendent and remained as particularly identifiable in a special account used in normal accounting procedures. They made a part of this amendment copies of the Pekin Community School District accounting sheets. One showed how different amounts had been raised and spent by the class over a period of three school years. Another showed the class money was carried on a general account record with hot lunch and many other activities funds. The total was deposited in three banks in the area in different amounts but no attempt was made to designate any deposit as that held in any particular fund. In other words the senior class money was commingled with hot lunch and other activities money and deposited in the banks. The class money was not held and deposited as a separate fund.

I. The trial court overruled grounds 1, 2 and 4 of defendants' motion to dismiss but sustained the motion on ground 3 thereof. Plaintiffs failed to plead further within seven days and dismissal of their petition became a final adjudication in the trial court. Rule 86, Rules of Civil Procedure; Winneshiek Mutual Ins. Assn. v. Roach, 257 Iowa 354, 359, 360, 132 N.W.2d 436, 439, 440; Halvorson v. City of Decorah, 257 Iowa 453, 456, 133 N.W.2d 232, 233.

II. Plaintiffs have appealed from dismissal of their petition. Defendants have cross-appealed. Defendants assert grounds 1, 2 and 4 as well as ground 3 were valid grounds for sustaining their motion to dismiss.

Taking of a cross-appeal by defendants was unnecessary and we decline to consider it as such. We are firmly committed to the view the successful party may, without appealing, save the judgment if error was committed against him which, if...