Petition of Hinze

• Decision Date: 16 July 1965
• Docket Number: No. 35928,35928
• Citation: 136 N.W.2d 434,179 Neb. 69
• Parties: Freeholders Petition of Gerald W. HINZE et al. Nora HINZE et al., Appellees, v. SCHOOL DISTRICT 34 OF YORK COUNTY, Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 434

136 N.W.2d 434

179 Neb. 69

Freeholders Petition of Gerald W. HINZE et al. Nora HINZE et al., Appellees, v. SCHOOL DISTRICT 34 OF YORK COUNTY, Nebraska, Appellant.

No. 35928.

Supreme Court of Nebraska.

July 16, 1965.

Syllabus by the Court

1. A school district may not maintain an action involving a change in boundaries of the school district, and has no legal interest in maintaining the boundaries of the district.

2. A school district has no fixed territorial integrity and a change or alteration in the boundaries must originate with the legal voters thereof.

3. A want of legal capacity to sue is waived unless raised in the trial court by demurrer or answer.

4. A question not presented and ruled on by the district court will not be considered on appeal.

5. Under subsivision (4) of section 79-403, R.S.Supp., 1961, where the petitioners' residence is closer to the schoolhouse in their own district than that of the adjoining district and both districts maintain bus routes, the distance to the schoolbus route of the district to which the transfer is sought must be one-half mile closer to the petitioners' residence than the route in the petitioners' district to entitle the petitioners' land to be transferred.

John E. Dougherty, York, for appellant.

Roderick R. Perry, York, Guy C. Chambers, Lincoln, for appellees.

Heard before WHITE, C. J., CARTER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and WESTERMARK, District Judge.

WHITE, Chief Justice.

The district court detached petitioners' land from School District No. 34 of York County and attached it to School District of York. School District No. 34 has appealed to this court, and the question presented is whether petitioners have complied with the provisions of section 79-403, R.S.Supp., 1961, which was applicable at the time of the application for transfer on June 12, 1962 (Laws 1961, c. 397, s. 1, p. 1207).

A preliminary question is presented by appellees as to the right of School District No. 34 to appeal. We have previously overruled a motion to dismiss this appeal, but the question is presented in the briefs and requires a disposition in this court. It is firmly established law of this state that a school district, although a body corporate under the statutes of the state, may not maintain an action involving a change in boundaries of the school district, and has no legal interest in maintaining the boundaries of the district. The district has no territorial integrity and the change or alteration in the boundaries must originate with the legal voters thereof under the appropriate statutory procedure. Cowles v. School-District, 23 Neb. 655, 37 N.W. 493; Halstead v. Rozmiarek, 167 Neb. 652, 94 N.W.2d 37; Board of Education of School Dist. No. 30 of Gage County v. Winne, 177 Neb. 431, 129 N.W.2d 255. But, the objection was not asserted in district court at any time and for the first time was raised here on appeal. The district court clearly had jurisdiction of the subject matter of the action under the statute and holdings of this court. See McDonald v. Rentfrow, 176 Neb. 796, 127 N.W.2d 480. It is clear that what we have here is a want of legal capacity to sue or to appeal, and want of legal capacity to sue is waived unless raised by demurrer or answer. Kuncl v. Kuncl, 99 Neb. 390, 156 N.W. 772; Gentry v. Bearss, 82 Neb. 787, 118 N.W. 1077. See, also, 39 Am.Jur., Parties, s. 106, p. 979. And, it is fundamental that the grounds for the assertion of error on appeal must be presented and ruled on by the trial court. It is our conclusion, notwithstanding the rule that a school district may not maintain an action or appeal involving the change of boundaries of a school district, that where objection is not made in the district court to its incapacity, its incapacity is waived and may not be raised for the first time on appeal to this court. Consequently, the case is before us here on the merits.

The pertinent provisions of section 79-403, R.S.Supp., 1961, provide as follows: '* * * file a petition with a board consisting of the county superintendent, county clerk, and county treasurer, asking to have any lands described therein set off from the district in which it is situated and attached to some other district. The petition shall state the reasons for the proposed change and show: (1) That the land therein described is either owned by the petitioner or petitioners or that he or they hold a school land lease under section 72-232, are in possession or constructive possession as vendee under a contract of sale * * *; (2) that the land is located in a district that adjoins the district to which it is to be attached; (3) that the territory proposed to be attached has children of school age residing thereon with their parents or guardians; and (4) that they are each more than two miles from the schoolhouse in their own district, and at least one half mile nearer to the schoolhouse or a school bus route of the adjoining district, which distance shall be measured by the shortest route possible upon section lines * * *.' The original petition was filed with the board on June 12, 1962.

It is necessary, of course, for petitioners to show compliance with the four jurisdictional requirements of the statute. The board and the district court found that they had complied and granted the transfer to the School District of York. On appeal, School District No. 34 asserts as error the finding of...