Guenther v. Funk

• Decision Date: 31 August 1937
• Docket Number: No. 6497.,6497.
• Citation: 274 N.W. 839,67 N.D. 543
• Parties: GUENTHER et al. v. FUNK et al. (UNRUH et al., Interveners).
• Court: North Dakota Supreme Court

67 N.D. 543

274 N.W. 839

GUENTHER et al.

v.FUNK et al. (UNRUH et al., Interveners).

No. 6497.

Supreme Court of North Dakota.

Aug. 31, 1937.

Syllabus by the Court.

1. It is a general rule that, in the absence of a statute extending the right of appeal, no one can appeal from a judgment or order unless he was a party to the action or proceeding in the court in which the judgment or order was entered, unless he is a legal representative of a party, or his privity of estate, title, or interest appears from the record.

2. Where certain persons who are residents and taxpayers in a school district and parents of children of school age, institute a mandamus proceeding to compel the directors of a school district to construct a schoolhouse, which if constructed will be attended by their children, and where such proceeding is brought in the names of such parents and does not purport to be brought by them in a representative capacity, other patrons of a school district who are not parties to the proceeding or the judgment entered therein have no right to appeal from the judgment.

3. This is a mandamus proceeding brought by taxpayers and residents of a school district, who are the parents of certain children of school age, to compel the board of directors of the school district to construct a schoolhouse which, if constructed, will be attended by their children. The proceeding was instituted in the names of such parents for the alleged purpose of enforcing their rights, and does not purport to be brought in behalf of other persons similarly situated. After the proceeding had been had and final judgment had been rendered and entered directing the issue of a peremptory writ of mandamus, certain other taxpaying patrons of the school district made application to have the judgment vacated and, upon the judgment being vacated, for leave to intervene.

For reasons stated in the opinion, it is held:

A. That the application was addressed to the sound judicial discretion of the trial court.

B. That the trial court did not abuse its discretion in denying the application.

Appeal from District Court, Stutsman County; McFarland, Judge.

Mandamus proceeding by Harry Guenther and others against David Funk and others, personally and as Board of Directors of Lowery School District No. 20, Stutsman county, N. D., to compel them to construct a schoolhouse. From a judgment entered therein, and from an order denying their motion to vacate the judgment, and, on judgment being vacated, for leave to intervene, Arthur Unruh and others, as citizens, residents, and taxpayers of school district, appeal.

Appeal from judgment dismissed and order denying motion affirmed.

J. A. Coffey, of Jamestown, for appellants.

Knauf & Knauf, of Jamestown, for respondents.

PER CURIAM.

The plaintiffs brought this proceeding in mandamus to compel the defendants, directors of Lowery school district No. 20 of Stutsman county, N. D., to construct a certain schoolhouse. In their petition, the plaintiffs allege that they “are interested in said school being patrons thereof, having children of school age in said district and a total of more than ten pupils all of whom are to be pupils of said school beginning at the fall 1937 term thereof; that plaintiffs, each and all of them, are residents of said school district and have been for more than one year last past; that each and all of them are now and have been, taxpayers of said school district for more than one year last past.”

The trial court rendered judgment in favor of the plaintiffs and ordered that a peremptory writ of mandamus issue commanding the defendants to construct the schoolhouse. Thereafter, one Arthur Unruh and Emil Guenther moved to vacate the judgment and, upon the judgment being vacated, for leave to intervene. In affidavits submitted in support of such motion, it is stated that said Unruh and Guenther also are patrons of said school district. The motion to vacate the judgment came on for hearing pursuant to notice. The trial court denied the motion and the defendants Unruh and Guenther have appealed from the order denying their motion to vacate the judgment. They also have appealed from the judgment.

Plaintiffs have moved to dismiss the appeal from the judgment and also from the order.

[1][2] The motion to dismiss the appeal from the judgment must be granted. The right of appeal is statutory and can be exercised only when and as authorized by the statute. Myrick v. McCabe, 5 N.D. 422, 67 N.W. 143;Whitney v. Ritz, 24 N.D. 576, 140 N.W. 676;Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132;Torgerson v. M., St. P. & S. Ste. M. Ry., 51 N.D. 745, 200 N.W. 1013.

Corpus Juris (3 C.J. pp. 616, 617) says:

“In the absence of a statute extending the right of review to persons other than parties who are aggrieved by a judgment, order, or decree, the general rule is that no one can appeal from a judgment, order, or decree, or bring a writ of error to review it, unless he was a party to the action or proceeding below, or to the judgment, order, or decree, or unless he is a legal representative of a party, or his privity of estate, title, or interest appears from the record. The fact that one is interested in the controversy or aggrieved by the judgment, order, or decree, does not entitle him to come into the case after it has been ended below, and appeal or sue out a writ of error, unless he is allowed to do so by statute.”

Our statutes relating to appeal do not authorize one who is not a party to an action or proceeding, or a legal representative or a privy of a party to appeal from a judgment or order. See sections 7819, 7820, 7821, C.L.1913.

Appellants cite and rely on certain decisions rendered in actions brought on behalf of a class, as an action by a taxpayer on behalf of himself and other taxpayers, wherein it was held that a person belonging to the class had the right of appeal. It is unnecessary for us to determine whether in a case brought by one person as representative of a class, a person belonging to the class, but not named as a party to the action or proceeding, has the right of appeal; for the plaintiffs did not purport to bring this mandamus proceeding for any one but for themselves. They did not purport to act as champions of others or seek to vindicate the rights of others similarly situated. They predicated the proceeding upon their own rights, and brought it only to vindicate and enforce such rights. The appellants were not parties to the mandamus proceeding, either by being named as such or as members of a class for the benefit of whom the proceeding was brought. The appeal from the judgment is dismissed.

The arguments advanced in support of the motion to dismiss the appeal from the order denying the motion to vacate the judgment and, upon the judgment being vacated, for leave to intervene are devoted largely to the merits of the order. But “want of merit in an appeal” is no ground for a dismissal. 4 C.J. p. 565, § 2379. The inquiry on a motion to dismiss an appeal does not concern the merits. It concerns only the question whether the decision is appealable, whether the appellant is entitled to appeal, and whether there has been a substantial compliance with the regulations relating to appeals.

[3] The order in question here falls within the provisions of subdivision 2, section 7841, C.L.1913, which provides that “a final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment” is appealable.

There is no claim that the statutory provisions relating to appeals have not been complied with. The motion to dismiss the appeal from the order is denied.

The question therefore presents itself whether the trial court was in error in denying the motion of the appellants to vacate the judgment and, upon the judgment being vacated, for leave to intervene.

According to the averments in the petition for the writ of mandamus, a schoolhouse in Lowery school district No. 20 in Stutsman county in this state, located at the southwest corner of the N. W. 1/4 of section 11, was wholly destroyed by fire on December 31, 1936. Thereafter, a number of the voters of said school district filed a petition with the board of directors of the district petitioning that a schoolhouse be constructed upon a site to be selected at or near the northeast corner of the S. E. 1/4 of said section 11. An election was called to be held on March 22, 1937, to vote upon the question of the selection of a schoolhouse site at the northeast corner of the S. E. 1/4 of said section 11, and upon the further question whether a schoolhouse should be constructed at such site. At such election, 52 votes were cast in favor of the proposed site and 42 votes against such site and 59 votes were cast for the building of a schoolhouse and 33 votes were cast against the building of a schoolhouse. The board of directors of the school district canvassed the votes cast at the election on March 22, 1937, and found and declared the result to be as above stated and further declared that the schoolhouse site and the construction of the building had been approved at such election.

On April 23, 1937, the plaintiffs instituted this proceeding in mandamus to compel the defendants, directors of Lowery school district No. 20, to construct a schoolhouse pursuant to such election. An alternative writ of mandamus was issued returnable May 4, 1937. Thereafter, on April 19, 1937, the directors of said school district No. 20 called another election to be held on May 4, 1937, to vote upon the question whether school No. 2 in said district, located upon a site in the southwest corner of the ...