School Dist. No. 3, Tp. 30, Range 14, Scott County v. Young

• Citation: 133 S.W. 143,152 Mo. App. 304
• Parties: SCHOOL DIST. NO. 3, TP. 30, RANGE 14, SCOTT COUNTY v. YOUNG et al.
• Decision Date: 07 July 1910
• Court: Court of Appeal of Missouri (US)

133 S.W. 143

152 Mo. A. 304

SCHOOL DIST. NO. 3, TP. 30, RANGE 14, SCOTT COUNTY v. YOUNG et al.

Springfield Court of Appeals. Missouri.

July 7, 1910.

Rehearing Denied January 9, 1911.

1. SCHOOLS AND SCHOOL DISTRICTS (§ 41) — CREATION OF NEW DISTRICTS—DIVISION OF PROPERTY.

Under Rev. St. 1899, § 9745 (Ann. St. 1906, p. 4467), providing that when a new school district, which includes within its limits those who aided in the erection of a schoolhouse in an existing district, does not release its rights to the property remaining in the existing district, the property shall be valued and apportioned between the new district and the existing district, a new school district formed from a part of an existing district and other territory may, when not relinquishing its interest in the property of the existing district, have an appraisement and apportionment of the property of the existing district.

2. INJUNCTION (§§ 14, 16) — REMEDY — ADEQUACY OF REMEDY AT LAW.

Under the statute, injunction lies where an irreparable injury is threatened, and to prevent the doing of a legal wrong when in the opinion of the court an adequate remedy cannot be afforded in an action for damages.

3. SCHOOLS AND SCHOOL DISTRICTS (§ 41)— REMEDY—ADEQUACY OF REMEDY AT LAW.

Where the officers of a school district refused to have property therein appraised and apportioned between it and another district, as required by Rev. St. 1899, § 9745 (Ann. St. 1906, p. 4467), and the officers threatened to sell the property and thereby prevent a just division, the latter district could resort to equity and enjoin a sale by the officers, so that an apportionment could be made and a tax levied to pay the amount apportioned to the latter district, for it had no adequate remedy at law.

4. CORPORATIONS (§ 517) — ACTIONS — ISSUES.

Under Rev. St. 1899, § 746 (Ann. St. 1906, p. 731), the allegation in a petition that plaintiff is a domestic corporation can only be put in issue by a verified answer.

5. SCHOOLS AND SCHOOL DISTRICTS (§ 24) — ORGANIZATION—COLLATERAL ATTACK.

Where school districts have acted on the theory that they were regularly formed, and they have exercised and continue to exercise governmental functions, the court will not permit their legal existence to be questioned in collateral proceedings.

6. APPEAL AND ERROR (§ 187) — DEFECT OF PARTIES DEFENDANT—WAIVER.

A defect of parties defendants not raised in the trial court by demurrer is waived.

Appeal from Circuit Court, Scott County; Henry C. Riley, Judge.

Action by School District No. 3, Township 30, Range 14, Scott County, against J. R. Young and others, Directors of School District No. 1, Township 30, Range 14, Scott County. From a judgment for plaintiff, defendants appeal. Affirmed.

J. R. Young, for appellants. James A. Finch, for respondent.

GRAY, J.

This is an original action to enjoin the appellants from selling, altering, or destroying what is known as the Washburn School property. At the annual school meeting of 1906, there were three country school districts in Scott county, known as the Kelso, Head, and Washburn districts. At the annual meetings of that year a proposition was submitted in each of said districts and voted on to organize a new district by taking portions of the three. Petitions were presented and notices posted, and at the annual meetings all the districts voted in favor of the proposition, and the plaintiff district was organized and is now known as the Edna district. After the organization of the plaintiff district, a proposition was submitted to form a new district by taking all the remainder of the Washburn district and a portion of the Head district. This proposition also carried, and a new district was organized and is now known as the Illmo district. The defendants, at the time this suit was commenced, were the directors of the Illmo district. When the plaintiff district was organized, there was a schoolhouse and school property in the Washburn district and located in the part of the district remaining after the plaintiff's organization. The defendants, as directors of the Illmo district, advertised this school property for sale, and, on account thereof, this injunction suit was instituted, having for its purpose the restraining of the defendants from moving, selling, or destroying the school property until an appraisement thereof has been made as provided by sections 9744, 9745, Rev. St. 1899 (Ann. St. 1906, pp. 4466, 4467). Upon the filing of the petition a temporary injunction was issued and the defendants appeared and filed a general denial and also a motion to dissolve. On the trial a judgment was rendered in favor of the plaintiff, and the defendants and their successors were permanently enjoined from disposing of the property until a legal appraisement had been made. The defendants appealed from this judgment. The appellants claim that the petition does not state facts sufficient to constitute a cause of action; that the plaintiff district was not legally formed; that there is a defect of parties defendant, and that under the evidence the court should not have rendered judgment in favor of the plaintiff.

The petition, after alleging that plaintiff is a corporate organization under the laws of Missouri, and giving a history of its formation, alleges that at the time of formation of plaintiff a part of the territory of the Washburn district was taken, and at said time there was in said district a schoolhouse and school property, and no interest of the new district in the property had ever been released; that at the annual school meeting of 1907, a new district was formed by taking the remainder of the Washburn district and other property; that the defendants are the directors in that new district; that the plaintiff appointed an appraiser to appraise the school property of the old Washburn district for the purpose of a division of the property; that during the existence of the Washburn district, its directors failed and refused to appoint an appraiser, and, since Washburn district became a part of the Illmo district aforesaid, the directors of said district have failed, neglected, and refused to appoint an appraiser; that defendants as directors of said Illmo district, have advertised and are attempting to sell the Washburn school property, and that they will sell the same unless enjoined and restrained; that the property is valuable and had never been appraised, as provided by law; that plaintiff district has a large interest in said property, the value of which can only be ascertained by an appraisement; that the buildings will be materially altered and destroyed so as to render a just and equitable appraisement impossible; that plaintiff would receive irreparable injury, and is without adequate remedy at law.

The sections of our statute above mentioned provide that when a new district is formed, which shall include within its limits those who have theretofore...