Northern v. McCaw

• Decision Date: 03 April 1915
• Docket Number: No. 1479.,1479.
• Citation: 189 Mo. App. 362,175 S.W. 317
• Parties: NORTHERN v. McCAW et al., Board of Directors of Rolla School Dist.
• Court: Missouri Court of Appeals

175 S.W. 317

189 Mo. A. 362

NORTHERN v. McCAW et al., Board of Directors of Rolla School Dist.

No. 1479.

Springfield Court of Appeals. Missouri.

April 3, 1915.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Injunction by Albert B. Northern against H. R. McCaw and others, members of the Board of Directors of the Rolla School District. Temporary restraining order dissolved, petition dismissed, and plaintiff appeals. Reversed and remanded, with directions.

J. J. Crites, of Rolla, for appellant. Lorts & Breuer and C. C. Bland, all of Rolla, for respondents.

FARRINGTON, J.

The plaintiff filed his petition seeking injunctive relief against the defendants, who were the public school directors of the Rolla school district in Rolla, Phelps county, Mo. In the trial court the temporary restraining order which had been issued was upon trial dissolved, and the plaintiff's petition dismissed. He has appealed.

The salient facts of the case are as follows: The plaintiff, an eye doctor who sold spectacles, resided with his family in Springfield, Mo., prior to moving to Phelps county. During the first part of July, 1913, his wife and four children moved from Springfield to Phelps county and took up their abode on a 40-acre farm on which was located a large and well-furnished dwelling house. This farm was several miles south of Rolla, and was in what is known as the Hirshe school district. The title to the farm and some of the personal property thereon stood in the wife's name; as to this there is no controversy. The plaintiff testified, and it is uncontradicted, that he is away from his home in Phelps county attending to his business in other counties about half the time. He stated that he did not leave Springfield, his former home, until during the first part of September, 1913, but it is shown that between July and September he did spend the Sundays and probably some other days with his family on the farm in Phelps county. It is not controverted that he entered into a lease for the entire second floor of a building over a store in the city of Rolla, which lease commenced to run on September 8, 1913, and was to continue for a term of three years, and that this lease contained several clauses, providing that the use to which plaintiff was to put the premises was for office and residential purposes. Plaintiff shipped from Springfield to Rolla some ordinary household goods and kitchen furniture, and placed the same in rooms in the leased quarters, which were partitioned off. He sublet two of the rooms to two tenants, and used the remainder of the second floor for himself and his family. Soon after acquiring this lease and placing the household goods and kitchen furniture in the rented premises, he moved his wife and four children from the farm, and they then took up their abode in the quarters which he had thus provided in Rolla. In these quarters the whole family lived, sleeping and eating there, and the plaintiff staying there with them during the time he was attending to his duties in Phelps county. At times plaintiff would go out to the farm and look after things. The four children attended the public school in Rolla for the school year beginning in the fall of 1913 and ending in the spring of 1914. At that time there was no rule requiring a charge or fee from nonresident children who attended the public schools. A part of the time the plaintiff used the living room or parlor as his office, and at other times he used a part of the hall for an office. The evidence shows that during the summer months his wife and children would spend most of the time on the farm, and that when plaintiff came in from his trips during such time he would go out there and stay. There is, however, positive and uncontradicted testimony, not only of the plaintiff, but of his witnesses, who were in a position to know, that the city quarters were never closed, and that there was never a time after the premises were leased and the household goods and kitchen furniture placed therein but what some of the family was there. It is shown that at different times the girls would take some of the washing and go out to the farm to do the work, one reason for this being that they could get soft water out there. Plaintiff's wife entertained her friends and the members of her club occasionally at the farmhouse. At times, the family got some milk from the farm for family use in town. The evidence shows that plaintiff did not own the farm, but that he did own the lease and the property in the town quarters which consisted of those articles of furniture one ordinarily expects to see in a home. Plaintiff swears positively that his home for himself and his family was in the rented premises in Rolla, and had been ever since he had prepared these rooms for occupancy. As stated, the lease was for a term of three years. At the time plaintiff's children were denied the right to attend the public schools of Rolla, this lease had been running for about one year. It was uncontradicted that plaintiff and his wife entertained their friends and guests in their town quarters.

The sole question to be decided in this case is whether the plaintiff had his home in the leased quarters in Rolla or on the farm in the Hirshe school district which belonged to his wife. If in Rolla, the judgment must be reversed. We think the evidence clearly shows that plaintiff's home was in Rolla, and that he was entitled to have his children attend the public schools in that city without charge. The evidence leading to this conclusion is that plaintiff shows positively his home was in Rolla. He had a habitation there, clearly indicating that he had furnished it as a home and was using it...