McCollum v. Adams

• Citation: 110 S.W. 526
• Parties: McCOLLUM et al. v. ADAMS et al.
• Decision Date: 29 April 1908
• Court: Texas Court of Appeals

110 S.W. 526

McCOLLUM et al. v. ADAMS et al.

Court of Civil Appeals of Texas.

April 29, 1908.

On Rehearing, May 27, 1908.

Appeal from District Court, Kimble County; Clarence Martin, Judge.

Suit by F. M. Adams and others against R. C. McCollum and another to enjoin defendants from paying out certain school funds and compel them to use the funds for the maintenance of a school. From a decree issuing the injunction as prayed, defendants appeal. Reversed, and bill dismissed.

There are no assignments of error in the transcript of the record in this case, and for that reason only such errors as are fundamental or apparent from the record can be considered upon this appeal. The suit is for an injunction, and was originally brought by appellees against appellants, R. C. McCollum and John Fritz, in their official capacity as trustees of school district No. 4 of Kimble county, John S. Durst, county judge and ex officio superintendent of public schools, in his official capacity, and Julius Heyman, county treasurer of said county, in his official capacity. The petition alleges, in substance, that prior to the scholastic year of 1905-06 there had been taught, in school district No. 4 of Kimble county, two schools, Nos. 1 and 2; that the first had been taught in London, a small town within the district, and the second, a distance of 1½ miles from London; that there had been a custom by which children from a school district in Menard county were admitted in school No. 2 of said district No. 4, and, when no school was being taught in school No. 2, the children from the neighborhood were admitted in the school in Menard county, an agreement for such an arrangement having been entered into by the trustee who controlled school No. 2 and the trustees of the district in Menard county; that in the fall of 1905 the funds of school district No. 4 were, by the ex officio superintendent of public schools of Kimble county, apportioned between schools Nos. 1 and 2, on the basis of an equal amount per capita; that after school No. 1 had been taught for about three months, the plaintiff Stewart, who had been elected trustee of district No. 4 from among the patrons of school No. 2, requested the other two trustees (appellants) to concur with him in employing a teacher for said school, which they refused to do, and announced their intention to consolidate the schools, which they afterwards did. The plaintiffs, then, as taxpayers of school district No. 4, and as parents of children within the scholastic age, brought this suit to recover from appellants, McCollum and Fritz, as school trustees of the district, the sum of $137.98, the amount claimed to have been apportioned to school No. 2 for said scholastic year, and to restrain them from taking any action in using said fund for the benefit of school No. 1, and particularly to restrain the county judge, as school superintendent, from approving any vouchers drawn against said fund for the benefit of school No. 1, and the county treasurer from paying out any part of said fund upon any vouchers, and for a mandatory injunction compelling said defendants to take such action as should be necessary to secure to the children of school No. 2 the use of said fund for the maintenance of a school for them.

A temporary writ of injunction was granted as prayed for; and on March 11, 1907, by leave of the court, E. Topperwein, county treasurer of Menard county, Tex., and W. R. Pullen, John W. Pearl, and L. M. Nelson, trustees of county line school district No. 4 of Menard county, made themselves parties plaintiff to the suit, alleging that, since the suit was instituted, a new school district had been created, known as "County Line School District No. 4 of Menard County," which embraces all that portion of school district No. 4 of Kimble county, and all children within the scholastic age, and all patrons, of what was formerly school No. 2 of said district; that they, as trustees of said county line school district, claimed that the fund involved in the suit belonged to the children of said district, and that it had been duly and reguarly set apart to the use of school No. 2, district No. 4 of Kimble county, Tex., and that by the unauthorized acts of the defendants in this case said school, its patrons, and the children entitled to attend it were deprived of the use of said fund during the scholastic year 1905-06, and that in justice and equity the fund belongs to them, as such trustees, for their use in maintaining the school in said county line school district, because said children during last scholastic session were permitted to enter and attend the school in said district in Menard county, in accordance with an agreement and custom between the two neighboring schools in the adjoining counties of Kimble and Menard, and so attended said school, after the Menard county school had admitted and received them under said agreement and custom, which had been observed for several years, all of which was known to defendants, McCollum and Fritz; and that the defendants, by the acts complained of in the original petition, had deprived the children of both schools of the use and...