Farris v. State ex rel. Murphy

• Decision Date: 21 January 1896
• Citation: 65 N.W. 890,46 Neb. 857
• Parties: FARRIS ET AL., SCHOOL BOARD, v. STATE EX REL. MURPHY.
• Court: Nebraska Supreme Court

46 Neb. 857

65 N.W. 890

FARRIS ET AL., SCHOOL BOARD,

v.STATE EX REL. MURPHY.

Supreme Court of Nebraska.

Jan. 21, 1896.

Syllabus by the Court.

1. In error proceedings this court will, on proper assignments of error, review a record to ascertain whether the pleadings support the judgment rendered by the district court, although there was in that court no motion for a new trial.

2. A writ of mandamus will not issue where it is not within the power of the respondents lawfully to perform the act sought to be enforced, or where the writ would otherwise be unavailing.

3. Accordingly, where an administrative board is charged with the duty of performing several acts involving expenditures, and there are no funds available sufficient to permit the performance of all, courts will not ordinarily by mandamus direct the board which act to perform and which to leave unperformed.

Error to district court, Saunders county; Bates, Judge.

Application by the state on the relation of John Murphy for a writ of mandamus against William D. Farris and others, as school board of school district No. 34 of Saunders county, Neb. From a judgment granting the writ, respondents bring error. Reversed.E. F. Gray, for plaintiffs in error.

John H. Barry and H. Gilkeson, for defendant in error.

IRVINE, C.

Murphy, a resident taxpayer, and parent of children of school age in school district No. 34 of Saunders county, applied to the district court for a writ of mandamus against the members of the district board to require them to purchase and lend to the pupils of the school the necessarytext-books for the pursuance of a course of study therein. A peremptory writ of mandamus was allowed by the district court, and the respondents bring the case here for review by petition in error. The relator claimed a right to the writ under chapter 46, p. 334, Sess. Laws 1891, entitled “An act to provide cheaper textbooks and for district ownership of the same.” By the terms of this act, district school boards are empowered, and it is made their duty, to purchase all text-books necessary for the schools of such district, and they are authorized to enter into contracts with publishers for the purchase of such books. The details of the act are not essential to a decision of this case. A question of practice must be disposed of before the merits of the case are reached. The case was tried in the district court on the application for the writ and an answer and a reply thereto, and was determined upon the pleadings and upon evidence adduced. There is no bill of exceptions, nor was there filed any motion for a new trial. On this state of the record the relator contends that this court can only inquire into the case for the purpose of ascertaining whether the application stated a cause of action; while the respondents contend that all the pleadings can be examined for the purpose of ascertaining whether the judgment rendered could properly be rendered on such pleadings. We concur in the latter view. In numerous cases it has been held that rulings made on the trial of a case cannot be reviewed on error unless the record discloses that a motion for a new trial was made in the district court, and a ruling obtained thereon. But it has likewise been held that, where a case tried before a justice of the peace has been taken to the district court by proceedings in error, a motion for a new trial in that court is not necessary to obtain a review of its judgment here. Newlove v. Woodward, 9 Neb. 502, 4 N. W. 237;Leach v. Sutphen, 11 Neb. 527, 10 N. W. 409;Dryfus v. Moline, Milburn & Stoddard Co., 43 Neb. 233, 61 N. W. 599. In Newlove v. Woodward the reason is given that the matters presented to the district court were purely questions of law. But in Leach v. Sutphen it is said that a motion for a new trial is only necessary where questions of fact are tried and determined. In O'Donohue v. Hendrix, 13 Neb. 255, 13 N. W. 215, it was held that a motion for a new trial is only necessary where a trial has been had, and that, if the court has merely construed the pleadings, or some of them, no motion for a new trial is necessary. The logic of this case would apply as well to a case where there was in fact a trial, but where the assignments of error relate only to matters involving the construction of the pleadings. We think the rule deducible from all the cases is that a...