Downs v. Bruce Independent School Dist. No. 49 of Brooking County

Decision Date20 December 1927
Docket Number5919. [*]
Citation216 N.W. 949,52 S.D. 168
PartiesDOWNS et al. v. BRUCE INDEPENDENT SCHOOL DIST. NO. 49 OF BROOKINGS COUNTY.
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Brookings County; W. W. Knight, Judge.

Action by Eva Downs and another against the Bruce Independent School District No. 49 of Brookings County. From the judgment plaintiffs appeal. Dismissed.

Hall & Purdy, of Brookings, for appellants.

Cheever & Cheever, P. H. Collins, and J. P. Alexander, all of Brookings, for respondent.

MORIARTY C.

This case now comes before the court upon a second appeal. On the previous appeal an order of the trial court was reversed and the case remanded for further proceedings.

The opinion of this court upon said former appeal will be found in 45 S.D. at p. 326, 187 N.W. 620. A sufficient statement of the facts will be found in that opinion, and it will not be necessary for us to repeat the statement here.

Said former opinion held that the circuit court had erred in dismissing the appeal to that court, and in so doing held that our statutes providing for appeals in school matters make no distinction between appeals from acts of district school boards and those of boards of education of independent districts, and that appeals would lie from acts of boards of education.

It is the present opinion of this court that such decision is erroneous, and that this court should have held that the appeal to the circuit court was properly dismissed.

Section 7492 of the Revised Code of 1919 is the only statute providing for appeals from boards in school matters.

Prior to the Code revision of 1919, sections 115 and 116 of chapter 135, Laws of 1907, specifically provided for appeals from acts of any district school board "or board of education." In revising the Code, the Code commission omitted the words "or board of education" from the language of section 7492, R. C., into which the said sections 115 and 116 of chapter 135, Laws of 1907, were condensed. And the commission placed this section 7492 in article 4 of chapter 3, pt. 13, of the Revised Code, an article and chapter dealing exclusively with common school districts.

It is true that in providing for service of the notice of appeal section 7492 retains the words, "district school board or board of education," but that fact cannot give a right of appeal where the statute specifically provides the class of actions from which appeals may be taken.

The right of appeal is purely statutory. State v Stunkard, 28 S.D. 311, 133 N.W. 253; Casserly v Marshall, 35 S.D. 47, 150 N.W. 480.

The decision on the former appeal has become "the law of the case," and must be so treated in this opinion; otherwise the instant appeal would be decided on the ground that the statutes give no right of appeal from acts of boards of education of independent districts.

In accordance with the direction contained in said former decision, the trial court proceeded to try the question of fact presented. The trial was to the court, without a jury, and the trial court made findings of fact and conclusions of law, and on the 1st day of May, 1924, entered judgment in favor of the defendant. From such judgment no appeal was taken until April 8, 1925.

Section 7492, Revised Code of 1919, contains the following provisions applying to appeals in school matters:

"The trial in the circuit court shall be de novo, according to the rules relating to special proceedings of a civil nature, so far as such rules are applicable and not in conflict with the provisions of this section, and the court shall enter such final judgment or order as the circumstances and very right of the case may require."
"An appeal from any such final judgment or order may be taken to the Supreme Court within sixty days after written notice thereof shall have been given to the party appealing, such appeal to be taken, perfected, heard and determined as other appeals in civil cases."

There is no motion to dismiss the appeal before this court, and no question as to the time of taking the appeal is presented by the briefs. But, in the instant case, where the time for appeal is limited to sixty days, and the appeal was not taken until over eleven months after entry of the judgment, it is proper for this court to inquire whether it has jurisdiction of the appeal. Winner Milling Co. v. C. & N.W. Ry. Co., 43 S.D. 574, 181 N.W. 195; National Casing Co. v. Schmechel, 44 S.D. 101, 182 N.W. 526.

The record shows that on May 1, 1924, the same day that the judgment was entered, an order was entered extending for a period of sixty days appellant's time for serving notice of motion for a new trial,...

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