Hinkle v. Saddler

• Decision Date: 09 April 1896
• Citation: 66 N.W. 765,97 Iowa 526
• Parties: HINKLE v. SADDLER ET AL.
• Court: Iowa Supreme Court

97 Iowa 526

66 N.W. 765

HINKLE

v.SADDLER ET AL.

Supreme Court of Iowa.

April 9, 1896.

Appeal from district court, Van Buren county; W. D. Tisdale, Judge.Wherry & Walker, for appellant.

W. A. Work, for appellees.

KINNE, J.

1. Plaintiff, a taxpayer in the independent district of Iowaville, in Van Buren county, Iowa, presented his bill for an injunction to Judge Tisdale, wherein he alleged that said district then had a commodious two-story brick schoolhouse; that in March, 1894, certain citizens residing in Jefferson county, and in territory which they claimed to have been detached from a school district in said county, and annexed to said independent district, but which in fact had never been legally made a part of said independent district, did, by their votes, pretend to elect directors in said independent district, one of whom was a resident of said territory so attempted to be attached, and that the votes thus cast were illegal and void; that the directors thus elected constituted a majority of said board, and, against the wishes of the other director and of a majority of the citizens of said district, were proceeding to tear down said schoolhouse, and relocate and rebuild the same on a new site, more than a mile distant from the old one, and, unless restrained, would do so, thereby involving the district in a large expense; that the question of removal had not been submitted to a vote of the electors of said district; that said electors had not voted any money or tax to rebuild said house; that the act of the legislature legalizing the detaching of said territory from the district in Jefferson county, and the attaching of it to said independent district, was void, being a special act. The judge made an order for hearing upon affidavits, and the cause was thus presented on the petition and amendments and affidavits filed; and, after argument, it was ordered that a temporary writ of injunction issue on filing of bond. The bond was filed, and the writ issued, restraining the defendants from tearing down, removing, and rebuilding said schoolhouse. About 20 days thereafter, plaintiff filed a supplemental petition in said cause, wherein it was alleged that, after service of the writ on defendants, they called a meeting of the electors of said independent district, for the purpose of voting a tax to rebuild said schoolhouse; that, at said meeting, persons were allowed to vote more than once; that the vote was taken by ballot, and the polls kept open but 15 minutes; that the meeting was called for 2 o'clock p. m., and between that hour and 3 o'clock p. m. 34 persons were present who had a right to vote, and who desired to vote against said proposition, whose votes were refused by the defendants; that only 31 persons in fact voted, and only 12 of them were then legal residents or voters in said district; that, under the law, defendants had no legal right to call said meeting for said purpose, and the electors had no power to vote such a tax at a called meeting; that there are two buildings in said district that can be had and used for school purposes until after the next annual meeting of said district, and said buildings are ample to accommodate all the pupils of the district; that, unless restrained, defendants will certify up said tax of 10 mills on the dollar, and, in anticipation thereof, will contract an indebtedness for said district to pay in rebuilding said schoolhouse, in violation of the wishes of the electors and taxpayers of said district. An injunction was prayed to restrain defendants from certifying or levying said tax, and from contracting any indebtedness in anticipation thereof, and from using or appropriating any of the material of the old building in the erection or rebuilding of a new building, and it was prayed that said election be decreed void. Without notice to the defendants, a temporary injunction was granted by Judge Traverse, which was served on the defendants on September 20, 1894. On the 24th of said month, defendants filed a motion to dissolve both of said injunctions, which motion was supported by affidavits. The grounds of said motion, in substance, were that at a meeting of the electors, called as provided by law, to vote on the question of a tax to build a schoolhouse, said directors were authorized to dispose of the old site and material, after completing the new house, and the funds arising therefrom were ordered placed in the schoolhouse fund of the district; that, for the purpose of building a new schoolhouse on the site selected, a tax of $400 or an equivalent, not exceeding 10 mills on the dollar of the taxable property of the district, was voted. On the hearing, each side filed affidavits, and the court made an order modifying the injunctions before granted to the extent of vacating them, except defendants were enjoined and restrained from selling or disposing of the old schoolhouse site, and from selling or disposing of the materials of the old house; and in case the new house be erected, at a cost not to exceed $300, the defendants were enjoined from building same otherwise than by contract, after receiving proposals, as by statute provided. The plaintiff excepted to the ruling, and appeals.

2. It is first contended by appellant that the action of the court in dissolving or modifying the injunction was in violation of section 3402 of the Code, which provides: “Only one motion to dissolve or modify an injunction upon the whole case shall be allowed.” The argument is that, as the first injunction was granted after notice and hearing, it was equivalent to a hearing upon a motion to dissolve, and the motion thereafter made to dissolve was, in effect, a second motion. The claim is not well founded. There was but one motion to dissolve. Furthermore, a second writ was obtained, without any notice and hearing, and the motion to dissolve was directed to it, as well as to the original writ. Even if appellant's contention was sound, he could not be heard to urge it now for the first time in this court. No such question was made below.

3. It is said it was error for the court to dissolve the injunctions when no answer had been filed. We are not called upon to pass upon this question, as this matter was in no way brought to the attention of the district court. We have so often announced the rule that questions which have not been brought to the attention of the trial court, and are first argued here, cannot be considered, that we need not cite authorities in its support. It is a rule which commends itself as fair and just, not only to the trial court, but to the parties. The policy of the law is to afford the court hearing the case an opportunity to correct its errors, if any, without resort to an appellate tribunal; and, when a party to the litigation fails to point out to the trial court errors which he claims it has made, he must be held to have waived them. Any other rule would work a great injustice to the courts below, and permit parties on...