Lindgren v. School Dist. of Bridgeport in Morrill County

• Decision Date: 15 April 1960
• Docket Number: No. 34740,34740
• Citation: Lindgren v. School Dist. of Bridgeport in Morrill County, 102 N.W.2d 599, 170 Neb. 279 (Neb. 1960)
• Parties: Carl LINDGREN and Ruth E. Lindgren, Appellees, v. SCHOOL DISTRICT OF BRIDGEPORT IN MORRILL COUNTY, Nebraska et al., Appellants, Impleaded with The Board of Education of said School District et al., Appellees.
• Court: Nebraska Supreme Court

Page 599

102 N.W.2d 599

170 Neb. 279

Carl LINDGREN and Ruth E. Lindgren, Appellees, v. SCHOOL DISTRICT OF BRIDGEPORT IN MORRILL COUNTY, Nebraska et al., Appellants Impleaded with The Board of Education of said School District et al., Appellees.

No. 34740.

Supreme Court of Nebraska.

April 15, 1960.

Syllabus by the Court

1. The refusal of a school district board to admit a nonresident pupil to its high school under the discretionary provision of section 79-4,100, R.R.S.1943, does not operate as an estoppel upon the members of the board to appeal from a decree holding that the proceedings transferring lands belonging to the pupil's parents into such district are void.

2. A litigant has no vested right in a mode of procedure, and an action commenced before an enactment changing the procedure in the court where the action is pending is properly triable under the changed procedure after the enactment becomes effective, unless the procedure is specifically retained by a saving clause.

3. The general saving clause statute, section 49-301, R.R.S.1943, relates to substantive and not to procedural law.

4. The procurement of a bill of exceptions is a procedural matter and, when completed in accordance with a new statute after the effective date of such statute, it is properly obtained under controlling law.

5. A motion for a new trial in an equity suit is required only if a review is sought of rulings of the trial court on alleged errors occurring at the trial, such as rulings on the rejection or reception of evidence.

6. The granting of petitions by a county superintendent after notice and hearing, as provided by section 79-402, R.R.S.1943, need not be entered with the formality of a judgment of a court of law. The rendition of an order granting the petitions and an entry thereof at an appropriate time and place is all that is required.

7. A valid order of a county superintendent, made pursuant to section 79-402, R.R.S.1943, is final as to all matters properly determined by it, unless a review thereof is sought, and as to such matters it is not subject to collateral attack.

8. An injunction suit to enjoin the enforcement of such an order is a collateral attack upon it and is not available unless the order is wholly void and not merely erroneous.

9. The finding of a county superintendent, inherently contained in the grant of the petitions, that 55 percent of the voters of the district were signatory thereto, is a final determination of that fact unless a review thereof is sought, which may not be collaterally attacked unless it appears from the face of the petitions that they are void.

10. The words 'each district affected,' contained in section 79-402, R.R.S.1943, mean each school district in its entirety that is involved in the proceeding.

11. The words 'each district affected' do not refer to lands being transferred from one district to another, and no petition is required from the voters in the territory being detached from one district and annexed to another.

12. When lands are transferred from one district to another under the provisions of section 79-402, R.R.S.1943, the district from which the lands are detached retains its identity and the assets and unbonded obligations of such district by virtue of the specific provisions of such statute.

13. Petitions initiated under section 79-402, R.R.S.1943, for detaching lands from one district and annexing them to another, do not require a provision specifying the disposition of assets and unbonded indebtedness, since such disposition is made by statute.

14. The transfer of lands from one district to another, initiated by petitions signed by the required number of voters, and granted by the county superintendent after notice and hearing, and from which order a judicial review is available, meets all the requirements of due process.

15. A voter and taxpayer of a school district has no interest in the tax funds of a district, lawfully collected, other than to see that they are used for the public purpose for which levied.

16. The provision that tax funds previously levied and collected shall remain the property of the district remaining after the proper transfer of a part of its lands to another school district is within the province of the Legislature, and is not inhibited by constitutional provisions.

17. Mere irregularities in proceedings to detach lands from one school district and annex them to another, under section 79-402, R.R.S.1943, do not have the effect of vitiating the proceedings and subjecting them to collateral atack.

18. Sections 25-520.01 to 25.520.04, R.S.Supp.1957, do not require the service of personal notice upon the voters of the districts affected of the hearing by the county superintendent provided for in section 79-402, R.R.S.1943.

James L. Macken, Bridgeport, for appellants.

Wright, Simmons & Harris, Scottsbluff, for Lindgren.

Robert J. Bulger, Paul Rhodes, Bridgeport, for Board of Education.

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

CARTER, Justice.

This is a suit by a landowner and his wife to enjoin the defendants from giving effect to an order of the county superintendent of schools detaching certain lands of plaintiffs from School District No. 50 and annexing such lands to the School District of the city of Bridgeport. The trial court held the proceedings void and granted injunctive relief. The School District of the city of Bridgeport and the members of its board of education have appealed.

The School District of the city of Bridgeport is a Class III district which we shall hereafter refer to as the Bridgeport district. School District No. 50 is a Class I district which we shall refer to as District 50. The remaining defendants are the members of the board of education of the Bridgeport district, the county superintendent, county clerk, county treasurer, and county assessor of Morrill County, the members of the school board of District 50, and the petitioning legal voters of that district.

The plaintiffs have filed a motion to dismiss the present appeal on the ground that appellants have accepted the judgment of the district court in the present suit by refusing to permit Robert Lindgren, the son of plaintiffs, to attend the high school in the Bridgeport district. The record shows the following: The final decree of the district court in the instant case was rendered on August 20, 1959, and an appeal taken therefrom as hereinbefore stated. On August 29, 1959, the board of the Bridgeport district refused to permit Robert Lindgren to attend the Bridgeport high school. Plaintiffs sought a writ of mandamus against the Bridgeport district to compel it to admit Robert Lindgren to its high school. The Bridgeport district successfully defended the action and a writ of mandamus was denied. No appeal was taken from this judgment. The motion to dismiss is without merit. We point out that a high school district is authorized by statute to refuse admission to any or all nonresident pupils. Section 79-4,100, R.R.S.1943. We point out further that the application of Robert Lindgren to attend Bridgeport high school was tendered on the basis of his being a nonresident pupil which the Bridgeport district board could accept or reject as a matter of discretion under section 79-4,100, R.R.S.1943. The rejection of the application under this authority cannot be considered an acceptance of the decree in the instant case. It seems to us that if the Bridgeport district had accepted the application of Robert Lindgren as a nonresident pupil, it would then have taken a position contrary to its position in the instant case that plaintiffs' lands were properly annexed and that plaintiffs thereby became residents of the Bridgeport district. In any event, the situation is such that it cannot be asserted as an estoppel against the Bridgeport district or its school board members to prosecute an appeal, or amount to an acceptance of the decree requiring a dismissal of the appeal.

The plaintiffs contend that there is no proper bill of exceptions in this court and that the only question to be determined is whether or not the pleadings sustain the judgment. As heretofore stated, the decree in this case was rendered on August 20, 1959. No motion for a new trial was filed. The appealing defendants ordered a bill of exceptions within time. Before the bill of exceptions was prepared, and on September 28, 1959, a new statute became effective which authorized this court to prescribe rules for obtaining a bill of exceptions. Such rules were prescribed and they became effective at the same time as the new statute. Admittedly, the procedure followed in procuring a bill of exceptions after September 28, 1959, was in accordance with the new statute and the rules of this court authorized thereby. The plaintiffs assert that the statute in force when the decree was rendered must be followed.

We point out that the new statute, section 25-1140, R.S.Supp.1959, contains no saving clause. It is urged that the general saving statute, section 49-301, R.R.S.1943, keeps the old procedure in effect. This contention is without merit. In Lovelace v. Boatsman, 113 Neb. 145, 202 N.W. 418, this court said: 'A litigant has no vested right in the mode of procedure, and an action commenced before an enactment changing the procedure in the court where the action is pending, after the enactment becomes effective, is properly triable under the changed method.' See, also, Norris v. Tower, 102 Neb. 434, 167 N.W. 728; Department of Banking v. Hedges, 136 Neb. 382, 286 N.W. 277; Krepcik v. Interstate Transit Lines, 151 Neb. 663, 38 N.W.2d 533. The general saving clause found in section 49-301, R.R.S.1943, providing that the repeal of a statute shall in no manner affect pending actions founded thereon, nor causes of action not in suit that accrued prior to any such repeal, does not save to a party the procedures of the repealed law. The general...