Cacek v. Munson, 33690

• Decision Date: 08 April 1955
• Docket Number: No. 33690,33690
• Citation: 160 Neb. 187,69 N.W.2d 692
• Parties: Ralph CACEK et al., Appellants, v. H. W. MUNSON et al., Appellees.
• Court: Nebraska Supreme Court

Page 692

69 N.W.2d 692

160 Neb. 187

Ralph CACEK et al., Appellants, v. H. W. MUNSON et al., Appellees.

No. 33690.

Supreme Court of Nebraska.

April 8, 1955.

Syllabus by the Court.

1. When, without timely and proper objection made in the district court, a motion to dismiss is treated by the parties as the equivalent of a general demurrer, it will be so treated on appeal to this court.

2. A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.

3. In passing on a demurrer to a petition, the court will consider an exhibit attached thereto and made a part thereof, if the allegations stated therein either aid the petition in stating a cause of action or charge facts going to avoid liability on the part of the defendant.

4. If an action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack on the judgment is collateral.

5. When petitions are filed with the county superintendent of schools requesting a change of boundaries of school districts under the provisons of section 79-402, R.S.Supp., 1953, it is his duty to give proper notice of and hold a hearing thereon and at or after such hearing to factually determine whether or not 55 per cent of the legal voters affected have lawfully petitioned the same, and such action is judicial in nature.

6. Where the record of proceedings before a county superintendent of schools in a proper hearing upon petitions filed under section 79-402, R.S.Supp., 1953, discloses that 55 percent or more of the legal voters of each school district affected have signed and filed petitions requesting a change of boundaries, the county superintendent has the jurisdiction and mandatory duty to order the boundary changes requested by such petitions.

7. Where the record of the proceedings and final order affirmatively disclose that the county superintendent of schools has mandatory authority and jurisdiction to enter an order changing the boundaries of school districts under section 79-402, R.S.Supp., 1953, such order may not, unless fraud is alleged, be collaterally attacked, but may be reviewed by proceedings in error which provide an adequate remedy.

Dryden, Jensen & Dier, Kearney, for appellants.

Vasey & Rist, Beatrice, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiffs, as residents, taxpayers, and members of the school board of School District No. 78 in Gage County, brought this injunction suit against defendants, county superintendent and county treasurer of Gage County, together with the respective school boards of several hereinafter enumerated school districts in Gage County. Plaintiffs' original petition was filed May 21, 1954, in the district court for Gage County. Thereafter, on June 2, 1954, they filed an amended petition which alleged, insofar as important here, that defendant district No. 74 of Gage County is a Class II school which operates a high school at Odell; that under the provisions of section 79-402, R.S.Supp., 1953, such district and all other defendant districts involved, together with district No. 78, filed petitions with defendant county superintendent praying that each and all of their boundaries should be changed so that they would be added to and made a part of district No. 74; and that if said petitions were correct, the county superintendent would be required by statute to include school district No. 78, which would cause such district to lose its identity, dominion, and control over its school activities, and require its residents to thereafter pay taxes for the support of consolidated school district No. 74, which taxes when levied and to be collected by defendant county treasurer would be and become a lien upon the property owned by them. They alleged that the petition filed with the county superintendent, purporting to have been signed by 55 percent or more of the legal voters of district No. 78, did not factually represent 55 percent or more of such legal voters, because one signer, although a resident of district No. 78, was not a qualified legal voter and should not have been so counted by the county superintendent. Therefore, 'That said action on the part of H. W. Munson in including said School District #78 in a merger plan, is and should be decalred (sic) null and void, in that he declared that School District #78 be included in said merger above described, as shown in his 'Findings and Order,' dated May 20, 1953, a certified copy of which is attached hereto, marked Exhibit A, and by reference made a part hereof.'

Plaintiffs' prayer was that the 'Court issue a permanent injunction against the defendants and each of them, restraining them from taking any action, either individually or in concert, from asserting any dominion, control, taxation, or attempting to assert dominion, control or taxation over said District #78, and from interferring (sic) or in any way affecting the rights of the parties plaintiff in their official duties as board members of School District #78 in the discharge of their duties therein, and for such other and further relief as the Court may find just and equitable.'

On July 15, 1954, defendants filed a motion to dismiss plaintiffs' amended petition for the reason that the trial court was without jurisdiction to hear and determine in this action the matters set forth therein. After hearing thereon, such motion was sustained and plaintiffs' amended petition was dismissed substantially upon the ground that the county superintendent had jurisdiction to hear and determine the matters about which plaintiffs complained, and having duly considered and determined them by the order rendered May 20, 1953, and made a part of plaintiffs' petition, such order was final and reviewable only by error proceedings as provided by law. Therefore, injunction could not be maintained by plaintiffs. Plaintiffs' motion for new trial was overruled, and they appealed, assigning that the trial court erred in finding that plaintiffs' action was a collateral attack, and in dismissing plaintiffs' amended petition for want of jurisdiction to hear the action. We conclude that the assignments should not be sustained.

As in Reller v. Ankeny, 160 Neb. 47, 68 N.W.2d 686, since the parties herein without timely and proper objection made in the district court, treated defendants' motion to dismiss as the equivalent of a general demurrer in order to test the sufficiency of plaintiffs' amended petition to state a cause of action, it will be so treated on appeal to this court. In Valentine Oil Co. v. Powers, 157 Neb. 71, 59 N.W.2d 150, 153, we held: 'A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.

'In passing on a demurrer to a petition, the court will consider an exhibit attached thereto and made a part thereof, if the allegations stated therein either aid the petition in stating a cause of action or charge facts going to avoid liability on the part of the defendant.' See, also, Reller v. Ankeny, supra.

Insofar as important here, the finding and order of the county superintendent, a copy of which was marked Exhibit A and made a part of plaintiff's amended petition, reads as follows: 'On this 20th day of May, 1953, at ten o'clock a. m., I, the undersigned, County Superintendent of Schools of Gage County, Nebraska, proceeded to conduct a hearing on the separate petitions of legal school voters of Gage County School Districts numbered 86, 134, 87, 118, 130, 94, 88, 154, 112, 78 and 98 and the petition of the Board of Education of School District number 74, Gage County, Nebraska, for a change of boundaries of each of said numbered districts by adding each of said districts * * * (hereinafter sometimes referred to as rural districts), to said School District number 74.

'I find from an examination of the proof of service of notice of said hearing heretofore directed to be given by me, and now on file in my office, that notice of said hearing has been duly given as ordered, and hearing being convened at the time and place stated in the notice, I then announced that I had the jurisdiction and authority to proceed with hearing. I announced the purpose of the hearing, and thereupon proceeded with such hearing, and herewith make the following special findings.

'I find that the petitions of each of said rural school districts request and petition me as County Superintendent of Schools of Gage County, Nebraska, to change the boundaries of each such district by adding each of said rural districts to said School District number 74, * * *.

'I further find that the petition of said School District number 74 petitions and requests me as said County Superintendent of Schools to change the boundaries of said District number 74 by the addition of said numbered rural districts, or such of them as may be so lawfully added, * * *.

'I thereupon separately examined and considered the petitions of each of said rural districts, to determine whether 55% of the legal voters in each district had petitioned for the addition of such district to said School District number 74, and as to each rural district I find as follows: * * *

'j. With respect to said School District number 78 I find that said School District has 43 legal school voters, included among whom is one Velda Cacek, whose name did not appear on the list of voters certified on the original petition requesting said change of boundaries, but who was determined to be a legal school voter of said School District number 78 during said hearing. I further find that of said number of...