Olsen v. Grosshans

• Decision Date: 10 June 1955
• Docket Number: No. 33701,33701
• Citation: 71 N.W.2d 90,160 Neb. 543
• Parties: George OLSEN et al., Appellants, v. Irma GROSSHANS, Superintendent of Schools of Kimball County, Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 90

71 N.W.2d 90

160 Neb. 543

George OLSEN et al., Appellants, v. Irma GROSSHANS, Superintendent of Schools of Kimball County, Nebraska, Appellee.

No. 33701.

Supreme Court of Nebraska.

June 10, 1955.

Syllabus by the Court

1. In an error proceeding in the district court, that court, and this court on appeal therefrom, must look to the transcript of the proceedings of the inferior court or tribunal filed with the petition in error to ascertain what happened there. Such proceeding is ordinarily tried on the appropriate and relevant questions of law set out in the petition in error and appearing in the transcript.

2. In an error proceeding from an inferior court or tribunal to the district court and on appeal therefrom to this court, error cannot be predicated on sufficiency or insufficiency of the evidence as a matter of law to affirm or reverse the findings and judgment of the court or tribunal from which error was prosecuted, unless all of the material relevant evidence is properly presented in a bill of exceptions.

3. When a question of the sufficiency of the evidence is involved in an error proceeding, the findings and judgment of the lower court or tribunal should be affirmed by the district court and by this court upon appeal therefrom, when all of the material and relevant evidence with reference thereto is not contained in a bill of exceptions and the transcript fails to disclose any error prejudicial to the party prosecuting the error proceeding.

4. In such case nothing can be added to or taken from the record by simple averment in a petition in error, and extrinsic facts presented therein do not form part of the record in which an order is sought to be reversed.

5. The doctrine of presumptions in favor of the regularity of proceedings in courts of general jurisdiction does not apply to courts or tribunals of inferior or limited jurisdiction who act in a judicial capacity, but as to such courts or tribunals the facts necessary to confer jurisdiction must affirmatively appear upon the face of the record.

6. When proper petitions are filed with the several county superintendents of schools requesting creation of a new district from other districts, or a change of boundaries of school districts across county lines under the provisions of section 79-402, R.S.Supp., 1951, it is the duty of the superintendents to give proper notice of and hold a multilateral hearing, and at or after such hearing to factually determine whether or not such districts have lawfull petitioned the same, and such action is judicial in nature.

7. When the record of the proceedings before such county superintendents in a proper hearing by them upon petitions filed under section 79-402, R.S.Supp., 1951, discloses that the districts involved have severally signed and filed proper petitions requesting creation of a new district from other districts or a change of boundaries thereof, such superintendents, acting multilaterally and not unilaterally, have jurisdiction and the mandatory duty to order the changes requested by such petitions, which order may be reviewed by petition in error, thereby providing an adequate remedy. Conversely, they have no jurisdiction and mandatory duty to order the changes requested.

8. Section 79-402, R.S.Supp., 1951, which authorizes creation of a new school district from other districts or a change in the boundaries thereof, contemplates mutuality of action by the districts affected, and requires a concurrence of the respective petitions filed therefor in all material respects with regard to the changes requested therein, and unless the petitions of the several districts affected concur in substantially the identical action requested, the county superintendent or superintendents are without jurisdiction or authority to act thereon.

Torgeson, Halcomb & O'Brien, Kimball, for appellants.

Jack H. Myers, Kimball, Beatty, Clarke, Murphy & Morgan, John P. O'Brien, North Platte, for appellee.

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

CHAPPELL, Justice.

Plaintiffs, George Olsen and others, as legal voters of School District No. 17 in Kimball County, appealed from a judgment of the district court assigning that such court erred in dismissing their amended petition in error which sought to reverse orders of defendant, Irma Grosshans, superintendent of schools of Kimball County. Such orders denied petitions requesting the attachment of all of School District No. 17 to school District No. 9, which includes the village of Potter in Cheyenne County, under the provisions of section 79-402, R.S.Supp., 1951, and statutes in pari materia therewith, which were then applicable and controlling. We conclude that the assignment should not be sustained.

Section 79-402, R.S.Supp., 1951, provides: 'The county superintendent shall create a new district from other districts, or change the boundaries of any district upon petitions signed by fifty-five per cent of the legal voters of each district affected. Such officer shall have the discretionary power to annex and territory, not organized into districts, to any existing district; Provided, changes affecting cities or villages shall be made upon the petition of the school board or the board of education of the district or districts affected. Before the county superintendent authorizes any changes as provided in this section, the county superintendent must fix a date for hearing and give all interested parties an opportunity to be heard at such hearing. Territory may be annexed to a district from adjoining county when approved by the county superintendent of the counties involved. A newly enlarged district shall assume any indebtedness previously incurred by any one or more districts annexed, unless otherwise specified in the petitions.' The second sentence thereof is not involved herein.

Also, section 79-404, R.R.S.1943, provides: 'A list or lists of all the legal voters in each district or territory affected, made under the oath of a resident of each district or territory, shall be given to the county superintendent when the petition is presented.'

It is generally the rule that in an error proceeding in the district court, that court, and this court upon appeal therefrom, must look to the transcript of the proceedings of the inferior court or tribunal filed with the petition in error to ascertain what happened there. Such proceeding is ordinarily tried on the appropriate and relevant questions of law set out in the petition in error, and appearing in the transcript. Also, in an error proceeding from an inferior court or tribunal to the district court, and on appeal therefrom to this court, error cannot be predicated on sufficiency or insufficiency of the evidence as a matter of law to affirm or reverse the finding and judgment of the court or tribunal from which error was prosecuted, unless all of the material evidence is properly presented in a bill of exceptions. Furthermore, when a question of the sufficiency of the evidence is involved in an error proceeding, the findings and judgment of the lower court should be affirmed by the district court and by this court upon appeal therefrom when all of the material and relevant evidence with reference thereto is not contained in a bill of exceptions and the transcript fails to disclose any error prejudicial to the party prosecuting the error proceeding. In re Estate of Vance, 149 Neb. 220, 30 N.W.2d 677.

Also, in such cases, as conceded by plaintiffs, nothing can be added to or taken from the record by simple averment in a petition in error, and extrinsic facts pleaded therein do not form part of the record in which an order is sought to be reversed. In that regard, the stenographically reported and transcribed record of the hearing involved herein was certified and allowed by defendant and attached to the end of the transcript. It consisted of eight pages of evidence, statements of counsel, legal voters, and the two county superintendents involved, given and made at the hearing. However, such reported and certified record, not supporting plaintiffs' contentions in any event, was never offered in evidence and there is no bill of exceptions before this court. Therefore, any discussion of its contents would serve no purpose.

It is generally the rule that the doctrine of presumptions in favor of the regularity of proceedings in courts of general jurisdiction does not apply to courts or tribunals of inferior and limited jurisdiction who act in a judicial capacity, but as to such courts or tribunals the facts necessary to confer jurisdiction must fairly appear from the record. In other words, jurisdictional facts will not be presumed in order to affirm or reverse the final orders of such tribunals. Such facts must affirmatively appear upon the face of the record. Shambaugh v. Buffalo County, 133 Neb. 46, 274 N.W. 207. In Proudfit v. School District, 109 Neb. 173, 190 N.W. 874, 875, referring to a transcript of the proceedings to change the boundary lines of school districts located partly in two different counties, it is said: 'All jurisdictional facts should appear on the face of the record. This being a direct attack upon the proceedings, all steps necessary to confer jurisdiction on the superintendent must be shown to have been taken. Dooley v. Meese, 31 Neb. 424, 48 N.W. 143.' In Dooley v. Meese, 31 Neb. 424, 48 N.W. 143, 144, it is said: 'In controversies in regard to the boundaries of school-districts, where it is sought to change the same, it must appear that the preliminary steps were taken, not only by the presentation of the proper petitions, but by notice of the time and place of presenting the same.'

Also, in State ex rel. McLane v. Compton, 28 Neb. 485, 44 N.W. 660, 661, it is said: 'A petition for changing the boundaries of a school-district must be in writing, as it becomes a matter of record, and the ground-work for the exercise of...