Dovel v. School Dist. No. 23

• Decision Date: 02 May 1958
• Docket Number: O,No. 34338,No. 44,44,34338
• Citation: 90 N.W.2d 58,166 Neb. 548
• Parties: Cecil DOVEL, Appellee, v. SCHOOL DISTRICT NO. 23, et al. Impleaded School Districttoe County, Nebraska, et al., Appellants, Walter Wilhelm et al., Intervenors Appellees.
• Court: Nebraska Supreme Court

Page 58

90 N.W.2d 58

166 Neb. 548

Cecil DOVEL, Appellee, v.SCHOOL DISTRICT NO. 23, et al.Impleaded School District No. 44, Otoe County, Nebraska, et al., AppellantsWalter Wilhelm et al., IntervenorsAppellees.

No. 34338.

Supreme Court of Nebraska.

May 2, 1958.

Syllabus by the Court.

1.The rule is well settled that one cannot accept or secure a benefit under a judgment, and then appeal from it, when the effect of his appeal may be to annul the judgment, unless his right to the benefit is absolute and cannot possibly be affected by the reversal of the judgment.

2.It is the possibility that his appeal may lead to a result showing that he was not entitled to what he has received under the judgment appealed from that defeats his right to appeal.Where there is no such possibility, the right to appeal is unimpaired by the acceptance of benefits under the judgment appealed from.

3.Where a right of appeal is not afforded by statute, a proceeding in error is the proper remedy to correct errors of law of an inferior court or tribunal.

4.A petition in error in the district court to review a judgment or final order of an inferior court or tribunal is in its nature an independent proceeding having for its purpose the removal of the record from an inferior to a superior tribunal to determine if the judgment or final order entered is in accordance with law.

5.In an error proceeding in the district court, that court, and this court on appeal therefrom, must look to the transcript of the proceedings of the inferior court or tribunal filed with the petition in error to ascertain if the final order entered is in accordance with law.Such proceeding is ordinarily tried on the questions of law set out in the petition in error and appearing in the transcript.

6.New evidence is not permitted in the appellate court to determine if errors of law occurred in the court or tribunal giving rise to the error proceeding.

7.In an error proceeding from an inferior court or tribunal to the district court, and on appeal therefrom to this court, error cannot be predicated on the sufficiency or insufficiency of the evidence as a matter of law to affirm or reverse the findings and judgment of the inferior court or tribunal from which error was prosecuted, unless all of the material and relevant evidence is properly presented in a bill of exceptions.

8.Where alleged errors of law dependent upon evidence are asserted, it will be conclusively presumed that the evidence adduced in the inferior court or tribunal supports the judgment or final order therein made in the absence of a proper bill of exceptions.

9.A proceeding under section 79-402, R.S.Supp.1955, which authorizes the creation of a new school district from other districts, or a change in the boundaries thereof, contemplates mutuality of action by the districts affected, and requires a concurrence of the respective petitions filed therefor in all material respects with regard to the changes requested therein, and unless the petitions of the several districts affected concur in substantially the identical action requested, the county superintendent of schools is without jurisdiction or authority to act thereon.

Bernard M. Spencer, Nebraska City, Perry, Perry & Nuernberger, Lincoln, for appellants.

Wellensiek & Morrissey, Syracuse, for Wilhelm.

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

CARTER, Justice.

This is an appeal from a judgment of the district court for Otoe County in an error proceeding in which it was determined that an order issued by the county superintendent of schools for Otoe County attaching all or part of school districts Nos. 23, 24, 45, 46, 59, 67, 79, 93, and 95 to school district No. 44, was null and void.The defendants in error in the district court have appealed.

Appellees have filed a motion to dismiss the appeal for the reason that by a subsequent proceeding the county superintendent of schools had entered an order attaching all or parts of school districts Nos. 24, 45, 67, 79, 93, and 95 to school district No. 44.It is contended that this is an acceptance of the judgment of the district court in the present action and precludes an appeal.

We think the ruling on the motion to dismiss the appeal is controlled by First Trust Co. of Lincoln v. Hammond, 139 Neb. 546, 298 N.W. 144, 145, wherein we said: 'The rule is well settled that one cannot accept or secure a benefit under a judgment, and then appeal from it, when the effect of his appeal may be to annul the judgment, unless his right to the benefit is absolute, and cannot possibly be affected by the reversal of the judgment.* * * It is the possibility that his appeal may lead to a result showing that he was not entitled to what he has received under the judgment appealed from that defeats his right to appeal.Where there is no such possibility, the right to appeal is unimpaired by the acceptance of benefits under the judgment appealed from.'

The case of Bennett v. City of Emmetsburg, 138 Iowa 67, 115 N.W. 582, 584, contains language that is applicable here.The court said: 'The motion proceeds upon the assumption that the interests of the plaintiffs and appellants are joint, and hence that a settlement or adjustment with one must be given operation to conclude the others.There is nothing upon which to rest such an assumption.The interest of each lot owner is separate and distinct from that of every other.The plaintiffs are in court together only because the statute authorizes such a course to avoid a multiplicity of suits.And, because in such a case one of the plaintiffs may be dismissed, or shall withdraw from the case, it does not follow that the right of the others to be heard is thereby destroyed.'See, also, People of State of New York ex rel. Woodhaven Gaslight Co. v. Public Service Commission, 269 U.S. 244, 46 S.Ct. 83, 70 L.Ed. 255;Stanhope v. Rural High-School Dist. No. 1, 110 Kan. 739, 205 P. 648.

In Jackson v. Denver Producing & Refining Co., 10 Cir., 96 F.2d 457, 461, the court said: 'A case will not be dismissed where only a part of the controversy has become moot and other questions remain for decision.'

We conclude that the case is not moot and that the appeal cannot possibly operate to show that appellants are not entitled to any benefits received under the judgment from which the appeal was taken.The motion to dismiss is therefore without merit.

The record shows that on April 13, 1957, the county superintendent of schools held a hearing, after notice, to determine the validity and sufficiency of petitions on file to change the boundaries of school district No. 44 by including therein the territory within school districts Nos. 23, 24, 45, 46, 59, 67, 79, 93, and 95.The petitions filed were contingent upon enough rural districts filing petitions with sufficient signers to attach to school district No. 44 sufficient territory to bring the total assessed valuation of school district No. 44 and the districts to be included to at least $2,000,000 valuation based on the 1956 valuations for tax purposes.It is not disputed that the total assessed valuation so required, without including school district No. 23, is less than the required amount.

It is contended that the petition filed by the petitioning electors of school district No. 23 does not contain the signatures of 55 percent of the legal voters of that district as required by section 79-402, R.S.Supp., 1955, and that the petition filed was therefore insufficient to authorize the county superintendent to attach school district No. 23 to school district No. 44.

The county superintendent found that there were 25 legal voters in school district No. 23 and that 15 legal voters signed the petition, and that 55 percent of the legal voters of the district had signed the petition as required by the statute.The district court found that there were 28 legal voters in school district No. 23 and that 15 legal voters had signed the petition, the same being less than 55 percent, and that such petition was therefore insufficient to authorize the county superintendent to attach school district No. 23 to school district No. 44.The validity of the petition filed by the legal voters in school district No. 23 is dependent on whether or not Clarence Pfeiffer, J. C. Crounse, and Lydia Crounse are legal voters of school district No. 23.It is stipulated in the record that Clarence Pfeiffer is a legal voter of the district.The question of the sufficiency of the petition is therefore dependent upon whether or not J. C. Crounse and Lydia Crounse were legal voters in school district No. 23.

The trial in the district court was heard de novo.Both parties offered evidence without objection.The trial court determined that J. C. Crounse and Lydia Crounse were legal voters in school district No. 23 upon the evidence thus adduced, and found, consistent with such determination, that the petition of school district No. 23 had an insufficient number of signers.We think it was error for the trial court to consider such evidence.

The hearing before the county superintendent of schools is a quasi-judicial hearing.The order of the county superintendent is final unless a review is sought in a proper proceeding.Since the controlling statutes do not provide...