Branderhorst v. County Bd. of Ed. of Marion County

• Decision Date: 17 November 1959
• Docket Number: No. 49801,49801
• Citation: 251 Iowa 1,99 N.W.2d 433
• Parties: Wm. BRANDERHORST et al., Appellants, v. COUNTY BOARD OF EDUCATION OF MARION COUNTY, Iowa, et al., Appellees.
• Court: Iowa Supreme Court

Page 433

99 N.W.2d 433

251 Iowa 1

Wm. BRANDERHORST et al., Appellants, v. COUNTY BOARD OF EDUCATION OF MARION COUNTY, Iowa, et al., Appellees.

No. 49801.

Supreme Court of Iowa.

Nov. 17, 1959.

H. E. deReus, Knoxville, and Life & Davis, Oskaloosa, for appellants.

Carroll Johnson and Bert A. Bandstra, Knoxville, for appellees.

LARSON, Chief Justice.

Plaintiffs brought certiorari to test the validity of the reorganization proceedings wherein Area No. 3 Community School District of Marion County, Iowa, also known as the Knoxville Community School District, was formed. Plaintiffs alleged many unlawful and improper actions, including a Constitutional violation. The writ issued May 2, 1958, and subsequent to hearing thereon the trial court filed its findings of fact and conclusions of law disposing of all propositions which were argued before the court.

Only one proposition is presented to us in this appeal. Defendants contend it was not raised or argued before the district court. Plaintiffs contend it appeared under their pleadings and proof that the eligible voters living in an area of Victory Central School District, which was not included in the proposed new school district, were not permitted to vote, contrary to the expressed provisions of Section 275.20 of the Iowa Code, I.C.A. They argue here for the first time that, because of such exclusion, the election December 10, 1957, was void and the subsequent proceedings establishing the new district were invalid.

As a basis of this contention plaintiffs refer to the general allegation in their petition, paragraph 5(c), which states, 'and that the election held were contrary to law and are invalid,' and to the testimony by the only witness, Mr. C. S. Thomas, relating to the areas involved in Unit 3 as proposed by the amended county plan. In response to the question, 'All right, so as to the particular election that you speak of there were people living within the area of Unit 3, as shown by Exhibit A of Exhibit I, that either did not get to vote on the question or were not permitted to vote on the question, is that correct?' Mr. Thomas said, '* * * As to the area of Unit 3 or any portion thereof and the number of elections that have been held subsequent to the time of the so-called establishment of the master map or plan as shown by Exhibit A of Exhibit I there are two proposals for reorganization and election has been held. I believe the second proposal was presented, the second election was held in November, 1957, and the one that carried. Those areas not included in Unit 3 of Exhibit A of Exhibit I did not get to vote. At the time the last election was held the Board of Education had not adopted any other plan or different from Exhibit A of Exhibit I, that is our master plan and we stand with it * * *.'

Without passing upon the sufficiency of this evidence, we agree with defendants' contention that, in view of the fact this issue was not presented as an issue or argued to the district court, we should not entertain it here.

I. An issue or contention not raised in the lower court will not be considered for the first time on appeal. This has been our consistent and repeated pronouncement. Neibert v. Stone, 247 Iowa 366, 367, 73 N.W.2d 763; Rubin Bros. Butter & Egg Co., Inc. v. Larson, 245 Iowa 741, 746, 63 N.W.2d 908, 911, and citations; Turner v. Zip Motors, Inc., 245 Iowa 1091, 1101, 65 N.W.2d 427, 433, 45 A.L.R.2d 1174; Jackson Wholesale Florists v. Schappaugh Floral, 246 Iowa 1189, 1194, 70 N.W.2d 154, 157; McCornack v. Pickrell, 231 Iowa 737, 741, 2 N.W.2d 57, 59; Kallem v. Kallem, 232 Iowa 1269, 8 N.W.2d 250; Kurtz v. Taylor-Kurtz, 228 Iowa 256, 290 N.W. 686; Davis v. Nolan, 49 Iowa 683; King & Co. v. Wells, 106 Iowa 649, 653, 77 N.W. 338. In Neibert v. Stone we said on page 367 of 247 Iowa, on page 764 of 73 N.W.2d 'This contention was not presented to or considered by the district court and defendant is therefore not entitled to urge it here. Accordingly we decline to consider it.'

This is the rule in most jurisdictions, and is quite logical when applied strictly to appellate courts whose primary purpose is to correct errors in the trial below. While we are not so restricted, we have properly adopted the rule in fairness to the lower court and the litigants. So unless at some stage in the proceedings before the trial court the proposition, issue or contention is made by the litigant, we usually decline to consider it in the appeal. This rule and its application are ably discussed in a recent article in the Fordham Law Review, Winter, 1958-59, pages 477-512, by Allen D. Vestal, entitled 'Sua Sponte Consideration in Appellate Review.' Many authorities are cited therein from all jurisdictions, typical of which is the statement in Arkansas Bridge Co. v. Kelly-Atkinson Const. Co., 8 Cir., 1922, 282 F. 802, 804: 'The law requires that errors, to be reviewable, must have been definitely and timely called to the attention of the trial court, in order to afford that court a fair opportunity to pass upon the matter, and correct its own errors, if any.' Also see 3 Am.Jur., Appeal and Error, § 820, p. 361.

From a careful search of the record we find nothing which could be called a definite or timely district court advisement of the proposition now urged upon us. Furthermore we find no motion of any kind following the trial court's lengthy and well-considered opinion, which advised the court even at that late hour that it had overlooked the proposition or contention now made in this case. The trial court's conclusion of law mentions all the issues brought to its attention and which it considered. They were numerous, but in no place do ...