School Dist. No. 14 in Fremont County v. School Dist. No. 21 in Fremont County

• Decision Date: 31 August 1937
• Docket Number: 1996.
• Citation: 51 Wyo. 370,71 P.2d 137
• Parties: SCHOOL DIST. NO. 14 IN FREMONT COUNTY v. SCHOOL DIST. NO. 21 IN FREMONT COUNTY.
• Court: Wyoming Supreme Court

71 P.2d 137

51 Wyo. 370

SCHOOL DIST. NO. 14 IN FREMONT COUNTY v. SCHOOL DIST. NO. 21 IN FREMONT COUNTY.

No. 1996.

Supreme Court of Wyoming.

August 31, 1937.

Appeal from District Court, Fremont County; C. D. Murane, Judge.

On petition for rehearing.

Order directing dismissal vacated and judgment below reversed and cause remanded for new trial with directions.

For former opinion, see 67 P.2d 192.

A. H Maxwell, of Lander, for appellant.

F. B Sheldon, Jr., of Riverton, for respondent.

BLUME Chief Justice.

A petition for rehearing has been filed herein. See 67 P.2d 192. School District No. 14 was organized as a separate school district on June 8, 1932. Desiring to obtain a separate distribution of future funds, it insisted upon entering into a contract with the old district, No. 21. This contract is set out in the original opinion. It shows upon its face that an apportionment was sought to be made under section 99-901, R.S. 1931. We held that under the facts existing in this case no apportionment or division of property was authorized under the section above mentioned. That part of our decision is not attacked in the petition for rehearing. But we held further that the action is one upon the contract above mentioned, and that, since the contract is void, nothing can be recovered in this action. We accordingly directed the trial court to dismiss the action. Counsel for plaintiff contends that we should have remanded the case for a new trial; that the action is not one upon the contract but is an action to recover under section 99-309, Rev.St.1931, which, in so far as pertinent, reads as follows:

“Whenever the district boundary board shall have formed or established a new district from districts already legally organized, the school board of such newly organized district may draw its proportion of the public school funds for paying teachers or other necessary legal school expenses from the school treasury of the district from which it was separated until such time as the newly organized district shall receive its proper apportionment of school moneys and taxes.”

We think that counsel for the plaintiff is in error in contending that the action was not one on contract. The petition alleges the establishment of the new district and the existence of the old; that the districts agreed upon the proper apportionment of school moneys and taxes; that they entered into a contract on October 23, 1932, whereby the defendant agreed to pay plaintiff the sum of $1,307.25, in three installments, one installment of $425 due April 1, 1933, and two others, one of which was made payable in each of the succeeding years; that the contract was approved by the district court; “that defendant has failed and refused and neglected to pay the aforesaid sum of $425.00 which was due and payable on or before April 1, 1933, and the same is long since due and owing to plaintiff, and defendant has expressed its intention of refusing to pay all or any part of the aforesaid sum of $1307.25, wherefore the whole thereof is now due and payable to plaintiff.” Thus plaintiff relied upon recovery of the whole sum by reason of the fact that default had been made in the payment of one of the installments mentioned in the contract. Judgment is prayed for $1,307.25 and interest. Plaintiff further pleaded in paragraph 7 of the petition “that defendant has wholly failed, refused and neglected to allow plaintiff to draw from the school treasury of the defendant district the sum of $1307.25 or any part thereof, and has wholly failed, refused and neglected to allow plaintiff to draw its proper proportion of the school funds [for paying teachers or other necessary legal school expenses] from the school treasury as by law provided, to the damage of plaintiff in the sum of $1307.25.” The words inclosed in the bracket as above mentioned, namely, “for paying teachers or other necessary legal school expenses” (words contained in section 99-309, supra), were stricken out of the petition by counsel for School District No. 14 with the consent of the court, thus indicating that the petition was not based upon the provisions of section 99-309, supra, but upon the contract, which, as stated before, we held to be unauthorized. This theory of the petition is borne out by the evidence in the case introduced on behalf of School District No. 14. It was shown that the contract was entered into, and it was introduced in evidence. Plaintiff did not attempt to show what portion of the funds which School District No. 21 had on hand justly belonged to School District No. 14. Nor did plaintiff attempt to show the amount of expenses incurred so as to come within any of the provisions of section 99-309, supra.

Counsel for plaintiff, however, maintains that the contract was merely used as evidence. But if that was his theory, he should not have pleaded the contract. Evidence should not, ordinarily at least, be pleaded. 49 C.J. 40. Moreover, the contract, clearly entered into, as it was, under the provisions of section 99-901, supra, is wholly void, and cannot be used as evidence for the recovery herein under section 99-309, supra.

We think, even after reading the vigorous assertions of counsel for plaintiff to the contrary, that the petition, fairly construed, presents an action on a contract. A petition should proceed upon a definite theory, and state the facts essential to support that theory. 49 C.J. 117, 165. And that theory must be determined from its leading averments, and the general scope and tenor of the pleading, and the theory most apparent and clearly outlined by such consideration will be adopted rather than another possible theory which may be, to some extent, indicated by a consideration of the formal part or fragmentary statements. 49 C.J. 167. In the petition in the case at bar, the contract is emphasized; the averments in that connection are the leading averments, showing the action one upon contract, without considering the parts struck out which further emphasize that...