Martins v. School District

• Decision Date: 05 May 1917
• Docket Number: 19470
• Citation: 162 N.W. 631,101 Neb. 258
• Parties: MINNIE MARTINS, APPELLEE, v. SCHOOL DISTRICT ET AL., APPELLANTS
• Court: Nebraska Supreme Court

162 N.W. 631

101 Neb. 258

MINNIE MARTINS, APPELLEE, v. SCHOOL DISTRICT ET AL., APPELLANTS

No. 19470

Supreme Court of Nebraska

May 5, 1917

APPEAL from the district court for Cuming county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

A. M Emley and A. R. Oleson, for appellants.

Hugo M Nicholson, contra.

DEAN, J. SEDGWICK, J., not sitting.

OPINION

DEA N, J.

On October 8, 1914, Minnie Martins, who was then 17 years of age, began an action in the district court for Cuming county by her next friend, John Richmond, plaintiff and appellee, to enjoin the officers of School District No. 30 of Wisner, defendants and appellants, from denying to her the privilege of attending the public school without payment of tuition. On final hearing a perpetual injunction was granted, and plaintiff's application for permission to attend the school without the payment of tuition was granted. The defendants have appealed.

Plaintiff is a sister of John Richmond's wife, and for nearly two years before the action was begun had made her home with the Richmonds at Wisner. She argues that her sister stands in the place of a parent to her, and besides maintains that she is a resident of Wisner, and is therefore entitled to attend the public school without charge on either ground. She attended the school of the defendant district throughout the 1913-1914 school year. No tuition was demanded until September, 1914, when a demand was made that $ 18 tuition be paid for the school year that was past. The demand was not complied with, because it was contended that her permanent home was at her sister's, and also because of plaintiff's claim of residence in the school district. On October 5, 1914, the district by resolution prevented her further attendance until the $ 18 tuition for the 1913-1914 school year was paid. Then, or at about that time, the board by resolution fixed the fee for nonresident pupils at 50 cents a week, and required all nonresident pupils to comply therewith. To this demand plaintiff also refused a compliance for the same reason that she refused to pay the charge of $ 18.

Defendants argue that plaintiff's sister nor any other person stands in loco parentis to her at Wisner, and they contend that she is a nonresident of the district. They point out that John Richmond, in pursuance of notice, appeared before the board and promised that all tuition payments that were demanded would be paid, but that he later repudiated his agreement. Mr. Richmond in explanation frankly admits the most of defendants' contention on this point, but he testified that at the time of his talk with the board he had not then been informed about an arrangement that had long theretofore been made between his wife and plaintiff's father, at or very soon after the death of plaintiff's mother, which provided in effect that the father, in part owing to his bereavement, had placed her in charge of Mrs. Richmond to care for and to educate. When asked if, on discovery, he ratified his wife's act in the premises, he promptly answered that he did.

Defendants argue that Mr. Richmond should not, after litigation is begun, be permitted to change his ground and mend his hold. The answer to this contention is that the board was notified by him of his change of ground before any action was taken by it, and besides, in the absence of authority or of ratification by plaintiff, he could not bind her by any promise or agreement he might make, and the record shows he was without such authority, and it is not shown that she ratified his unauthorized act. Plaintiff was emphatic in her testimony that she never authorized John Richmond to make any statement to the board in her behalf about the payment of tuition, and that she never knew of his talk with the board on this subject until about the time suit was begun. The real issue in the case is whether Minnie had a right to go to defendants' school without the payment of tuition. To this all else is subordinate. If Mrs. Richmond stood in the place of a parent to her she had that right or if plaintiff was a resident in good faith of the district she had a right to attend its public school. In either event, in view of the surrounding circumstances, John Richmond's promise or attitude or change of ground has nothing to do with a proper determination of the case.

The case was tried on June 8, 1915. Her mother had been dead eleven years. Her father and stepmother, to whom at that time he had...