Monroe Tp. School Dist. v. Board of Ed. In and For Fremont County, 49794

• Decision Date: 20 October 1959
• Docket Number: No. 49794,49794
• Citation: 250 Iowa 1324,98 N.W.2d 888
• Parties: MONROE TOWNSHIP SCHOOL DISTRICT, Plaintiff-Appellant, v. BOARD OF EDUCATION IN AND FOR FREMONT COUNTY, Iowa; Dwight Fellows, County Superintendent of Schools of Fremont County and Secretary of Board of Education in and for Fremont County, Iowa, Defendants-Appellees, Community School District of Farragut in Fremont County, Iowa, and the Board of Directors of Said Community School District, Intervenors. Matter of the Proposed COMMUNITY SCHOOL DISTRICT OF FARRAGUT.
• Court: Iowa Supreme Court

Page 888

98 N.W.2d 888

250 Iowa 1324

MONROE TOWNSHIP SCHOOL DISTRICT, Plaintiff-Appellant, v. BOARD OF EDUCATION IN AND FOR FREMONT COUNTY, Iowa; Dwight Fellows, County Superintendent of Schools of Fremont County and Secretary of Board of Education in and for Fremont County, Iowa, Defendants-Appellees Community School District of Farragut in Fremont County, Iowa, and the Board of Directors of Said Community School District, Intervenors Matter of the Proposed COMMUNITY SCHOOL DISTRICT OF FARRAGUT.

No. 49794.

Supreme Court of Iowa.

Oct. 20, 1959.

D. D. Hogzett, Oakland, and Smith, Peterson, Beckman & Willson, Council Bluffs, for plaintiff-appellant.

Edwin A. Getscher, Hamburg, for defendants-appellees.

John S. Redd, Sidney, and Raun & Franck, Denison, for intervenors-appellees.

THOMPSON, Justice.

Through proceedings which are not in issue so far as this appeal is concerned, the County Board of Education of Fremont County amended a previously submitted plan of county reorganization. Thereupon the plaintiff, one of the districts affected by the plan and the amendments, appealed to the District Court of Fremont County, alleging certain errors in the procedures in granting the petition and the amendments. The County Board and the Superintendent of Schools, in his official capacity and as secretary of the Board, were the only defendants named in the appeal. They filed a special appearance, raising two basic questions: 1, the County Board, hereinafter referred to as the board, and county superintendent are not proper or necessary parties or real parties in interest in the appeal; and 2, the petitioners, or proponents for the establishment of the district, and the school districts affected by the petition and the decision thereupon, other than the plaintiff, are necessary and indispensable parties to the appeal; and so no proper and timely appeal from the decision of the board has been taken. The trial court sustained the special appearance, and we have this appeal.

I. In the special appearance, three districts other than the plaintiff are named as being affected by the ruling of the board. The special appearance is not verified, and we have no way of knowing whether its allegation as to the other districts is true; nor do we think this is a matter of which the court can take judicial notice. In our view of the case, however, whether there are other affected districts is not material and we give the matter no further attention. In passing, it may be noted that one other district, the Community District of Farragut and its board of directors, attempted to intervene and filed a special appearance, raising substantially the same questions. It alleged it is one of the districts affected. This special appearance was overruled, and no appeal has been taken. No further reference will be made to it.

II. The special appearance attempts to raise important questions as to the proper parties to an appeal to the courts from a decision of the county board of education when the entire territory affected lies within the same county. But the method of raising them is challenged; and since we agree that special appearance is not a proper method of bringing them before the courts, we do not reach them. It is suggested in argument that some of the matters suggested and relied upon by the defendants and the trial court will require evidence to establish. For instance, we do not know how many districts, if any, other than the plaintiff and the intervening district, may be affected. The special appearance names others; but in this respect it is directly analogous to a 'speaking' demurrer, and we can give it no consideration. Bales v. Iowa State Highway Commission, 249 Iowa 57, 62, 86 N.W.2d 244, 248. In any event, we are met at the threshold of the case by the plaintiff's contention that special appearance is not a proper manner of raising the substantial questions; and this being well founded, we must wait until they are properly before us before determining them. We cannot say: 'If these matters were properly presented, our holding would be thus and so.'

III. The claim that the defendants are not proper parties to the appeal may be shortly dismissed. It is not contended that they are not properly named in the petition, or that a proper and timely notice was not served upon them. This being so, their argument at this point is sufficiently answered by the statement that if they are not proper parties and so no cause of action is stated against them, they may raise the point by motion to dismiss, or answer, or perhaps in other ways. The question goes to the merits of the controversy, rather than to the jurisdiction. Harvey v. Prall, Iowa, 97 N.W.2d 306, 310.

IV. The function of a special appearance is discussed and defined in State ex rel. Cairy v. Iowa Co-Operative Association, 248 Iowa 167, 169, 170, 171, 79 N.W.2d 775. It is there pointed out that it serves only to raise questions of jurisdiction of the person, or insufficiency of the original notice either in its contents or manner of service, or jurisdiction of the subject matter. Rules of Civil Procedure, rule 104(a), 58 I.C.A. To the same effect is J. R. Watkins Co. v. Kramer, Iowa, 97 N.W.2d 303.

Since there is no claim of lack of service of a proper notice upon the defendants, their case must rest upon some asserted want of jurisdiction of the subject matter. In State ex rel. Cairy, supra, we set out the rules which determine this question. We there cited authorities, including 21 C.J.S. Courts § 160; Collins v. Powell, 224 Iowa 1015, 1020, 277 N.W. 477, 481; In re Appeal of McLain, 189 Iowa 264, 269, 176 N.W. 817, 819; and Reed v. City of Muscatine, 104 Iowa 183, 184, 185, 73 N.W. 579. All of these are to the general effect that a court has jurisdiction of the subject matter of an action when it has a right to try the kind of proceeding, the general class of cases to which the one then before it belongs. It seems inescapable that the court had jurisdiction to try the class of cases which includes the present one, Section 275.15, Code of 1958, I.C.A., provides: '* * * within twenty days after the publication (of the order fixing boundaries of the proposed school corporation) thereof the decision rendered by the county board of education may be appealed to a court of record in the county involved by any school district affected.' The applicability of this section is not questioned, except by the claim of defects in parties.

V. It would be possible to close this opinion with a statement of the rules set forth in the preceding division. However, this might be thought to be a lack of consideration of the position of the defendants and to fly in the face of some of the authorities cited by them. One of these is In re Redistricting of School Districts, 164 Neb. 78, 81 N.W.2d 822. The trial court granted a motion to dismiss because of lack of necessary parties, and the supreme court affirmed. The propriety of raising the point by a special appearance questioning the jurisdiction was not involved. Defendants also rely much upon such cases as Paulson v. Paulson, 226 Iowa 1290, 286 N.W. 431, and In re Estate of Shumaker, 234 Iowa 195, 197, 12 N.W.2d 207. It is true that in these cases we dismissed appeals to this court because parties to the action below who might be adversely affected were not served with notice of the appeal; and we referred to lack of jurisdiction. If we were here concerned with a true appeal, from...