State ex rel. Taylor v. Whetsel
| Decision Date | 06 November 1925 |
| Docket Number | 24,323 |
| Citation | 149 N.E. 369,197 Ind. 278 |
| Parties | State, ex rel. Taylor v. Whetsel, Trustee et al |
| Court | Indiana Supreme Court |
Rehearing Denied February 19, 1926, Reported at: 197 Ind. 278 at 285.
1. TRIAL.---Failure to find facts equivalent to a finding that there were no such facts, as to the party having the burden of proof.---As against the party having the burden of proof the failure to find facts material to an issue is equivalent to a finding that there were no such facts. p. 281.
2. MANDAMUS.---Failure to find facts on which relator's action was based constituted a finding that such facts did not exist, where special finding made.---In an action of mandate to compel a township trustee to transport relator's children to the school which they were attending, on the ground that they were pupils of an abandoned school living more than a mile and a half from the school they were attending, the court making a special finding, its failure to find that relator's children were pupils of an abandoned school or that there were funds available to pay the expense of the transportation constituted a finding that they were not pupils of an abandoned school and that there were no such funds. p. 281.
3. SCHOOLS AND SCHOOL DISTRICTS.---Definition of school district in school law of 1865 remains unchanged and controls in determining school district to which school children belong.---Section 14 of the school law of 1865 (Acts 1865 p 3, 6542 Burns 1926), in so far as it defines the persons constituting a school district, remains unchanged and controls in determining the school district to which parents and their children belong. p. 284.
4. SCHOOLS AND SCHOOL DISTRICTS.---Children of relator held not pupils of abandoned school within statute so as to require trustee to furnish them transportation to another school.---In an action of mandate to compel a township trustee to transport relator's children to the school which they were attending, as provided in 2, Acts 1921 p. 743, 6853 Burns 1926, held that such children were not pupils of a school that was abandoned so as to come within the provisions of said section requiring the trustee to furnish them transportation to another school. p. 284.
5. SCHOOLS AND SCHOOL DISTRICTS.---Parent's residence for school purposes in district in which he or his predecessors in occupation of his home elected to send children from that home to school.---The law fixes the residence of a parent for school purposes in the district in which he or his predecessors in the occupation of his home elected to send children from that home to school, subject to be changed with the joint consent of the school patron and the township trustee. p. 286.
6. SCHOOLS AND SCHOOL DISTRICTS.---In action to mandate trustee to furnish transportation to school children, held that evidence sustained finding that trustee did not have sufficient available funds to pay expense.---In an action to mandate a township trustee to furnish transportation to school children, evidence held to sustain finding that there were not sufficient available funds to pay the expense of transporting such children. p. 287.
7. APPEAL.---Appellate tribunal not bound to assume as true and correct all the facts recited in appellant's brief where the evidence shows the contrary.---An appellate tribunal is not bound to assume that a recital of facts in appellant's brief is correct, though not controverted by appellee, where the record sets out evidence showing the contrary, as it is its duty to search the record to affirm the judgment. p. 288.
From Jay Circuit Court; Roscoe D. Wheat, Judge.
Action in mandate on the relation of Frank Taylor against Preston Whetsel, as trustee of Knox school township, and others. From a judgment for defendants, the relator appeals.
Affirmed.
Moses B. Lairy, Malcolm V. Skinner and Moran & Gillespie, for appellant.
Appellant 's relator brought an action of mandamus against the trustee and members of the advisory board of the township in which he lives to compel them to transport two of his children to the school which they are attending, in district number one of that township. He alleged that he is a resident taxpayer of the township and the father of the two children, and that they reside with him in school district number two of the township, which district was abandoned, and in which no teacher has been employed for several years past; that one of the said children is aged twelve years and the other seven years; that there is no school within a mile and a half of the said residence of the children, and they are compelled to attend the school in district number one, which is distant two miles and fifty rods from said residence; that the trustee has $ 1,505.08 of the special school funds available for the transportation of children so situated, and that, before bringing suit, demand was made and refused, etc. An answer of general denial and a second paragraph of argumentative denial which alleged in affirmative form that relator and his children reside and always have resided in school district number one, and not in number two, were filed, and appellant filed a reply of general denial. At the request of relator, the court made a special finding of facts, by which it found, among other things, that school district number two had been abandoned six years before, and had not since been used for school purposes, but that all the eight children of relator, including the two mentioned in his complaint, ever since becoming of school age, had attended the school in school district number one, but had never at any time attended in district number two; and there was no finding that the children resided or ever had resided in the abandoned district number two or were pupils of the abandoned school, or that the trustee had any funds available with which to do what was demanded. On this finding, the court stated conclusions of law that at the time of commencing this action and for some years prior thereto, the relator and his said children were and continuously had been "attached to school district number one," that the law was with the defendants, and that the defendants were entitled to recover their costs. There was no motion for a venire de novo. The plaintiff filed a motion for a new trial for the alleged reasons that the decision is not sustained by the evidence and is contrary to law, which was overruled, and an exception was taken, whereupon judgment was rendered that the plaintiff take nothing, and that defendants recover their costs.
Appellant being the plaintiff below and having the burden of proof, the failure of the court to find that relator's children resided in the abandoned school district number two, or were pupils of the abandoned school, or that there were any funds available to pay the cost of transportation, constituted a finding that the children were not pupils of that school, and that there were no such funds. National Surety Co. v. State (1913), 181 Ind. 54, 67, 103 N.E. 105; McAdams v. Bailey (1907), 169 Ind. 518, 534, 82 N.E. 1057, 13 L. R. A. (N. S.) 1003, 124 Am. St. 240. And since the whole case was based upon the alleged facts that they resided in that district and were pupils of that school, and that he had funds available, such a finding fully supports the conclusions of law that plaintiff is not entitled to recover anything and that defendants may recover...
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