Teeple v. State ex rel. Bower
| Decision Date | 24 November 1908 |
| Docket Number | No. 21,285.,21,285. |
| Citation | 171 Ind. 268,86 N.E. 49 |
| Parties | TEEPLE v. STATE ex rel. BOWER et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Clark County; H. C. Montgomery, Judge.
Mandamus by the State, on the relation of John W. Bower and others, against James N. Teeple, trustee, etc. From an order directing the issuance of a peremptory writ, respondent appeals. Reversed, with instructions.G. H. D. Gibson and E. C. Hughes, for appellant. James W. Fortune, for appellees.
This proceeding was brought by the relators in September, 1907, to compel appellant by writ of mandate to perform certain alleged official duties. The verified application for the writ was in two paragraphs, upon which an alternative writ was issued. To this alternative writ appellant filed a return, which was held sufficient on demurrer. Afterwards relators filed another verified application for an alternative writ denominated “paragraph 3.” An alternative writ was issued on said paragraph. Appellant's demurrer “for want of facts” to this alternative writ, and the application therefor, was overruled. Appellant filed a return to the second alternative writ. A trial of said cause by the court resulted in a finding, and, over appellant's motion for a new trial, a judgment in favor of the relators, and an order for a peremptory writ of mandate commanding appellant “to forthwith employ a teacher to teach the Otisco school in district No. 11, in said township for the school year of 1907 and 1908 and not to abandon the same.” The errors assigned call in question the action of the court in overruling appellant's demurrer “for want of facts” to the application for an alternative writ, designated “paragraph 3,” and the alternative writ issued thereon, and appellant's motion for a new trial.
The relators contend that appellant is not “entitled to have said alleged error of overruling his demurrer to said paragraph and alternative writ considered, on account of his failure to set out in his brief that part of the record showing the ruling of the court thereon, and appellant's exception thereto, as required by rule 22 of this court (55 N. E. v).” It is not necessary to determine whether or not such ruling and exception thereto are sufficiently set forth in appellant's brief, because the relators have cured the defect, if any, in appellant's brief by copying the order book entry of said ruling, and appellant's exception thereto, in their brief, thus accomplishing the purpose of the rule. Chicago, etc., R. Company v. Wysor Land Company, 163 Ind. 288, 289, 69 N. E. 546;Tipton Light, etc., Company v. Dean, 164 Ind. 533, 534, 535, 73 N. E. 1082. The relators complain of the failure of appellant to comply with said rule in other repects, but as appellant has made a good-faith effort to comply, and has substantially complied therewith, said defects will be disregarded. Stamets v. Mitchenor, 165 Ind. 672, 675, 75 N. E. 579;Howard v. Adkins, 167 Ind. 184, 186, 78 N. E. 665, and cases cited. Said third paragraph, and the alternative writ issued thereon, allege facts showing “that appellant, nor any of his predecessors in office, had ever obtained an order from the county superintendent of said county authorizing him to change the site and location of the school building in said school district No. 11, located at the town of Otisco, to some other site in said school district,” under the provisions of sections 6417-6419, Burns' Ann. St. 1908, sections 5920c-5920e, Burns' Ann. St. 1901 (Acts 1903, p. 17, c. 6), and that the attendance at said school has been such that appellant had no power or authority to “discontinue and abandon said school under section 6422, Burns' Ann. St. 1908 (Acts 1907, p. 444, c. 233).” And that appellant had not abandoned said school district on “the written consent therefor, signed by a majority of those legal voters who are entitled to vote for township trustee in such district,” as provided in section 6420, Burns' Ann. St. 1908, section 5920, Burns' Ann. St. 1901 (Acts 1901, p. 159, c. 97), which took effect March 7, 1901. Section 6421, Burns' Ann. St. 1908 (Acts 1901, p. 437, c. 200), which took effect March 11, 1901, four days after section 6420 (5920g), supra, took effect, provided: “That whenever a majority of the legal voters of any school district or corporation shall petition the trusteeor trustees of such school district or corporation for the abandonment of their school and the consolidation of their schools with the schools of some other district or corporation in the same township, it shall be the duty of the trustee or trustees of such school district or corporation to comply with such petition, and to provide for the education of the children of such abandoned district or corporation in other schools as asked for in such petition.” For aught that appears in the third paragraph, and in the alternative writ issued thereon, appellant may have abandoned the school at Otisco in said district No. 11 by consolidating said school with the school or schools in other school districts in said township, on the petition of the class of legal voters mentioned in said section 6420 (5920g); the said class of voters being a different class from that mentioned in section 6420 (5920g), supra. Ireland v. State, 165 Ind. 377, 380, 75 N. E. 872. Said third paragraph, and the alternative writ issued thereon, not showing that the school at Otisco in said school district No. 11, was not abandoned by being consolidated with other school or schools in other school districts in the said township, under said section 6420 (5920g), supra, it was insufficient, and the court erred in overruling the demurrer thereto. Ireland v. State, supra. This is true because the presumption is that appellant, as trustee of said township, has performed all of his official duties, and therefore the alternative writ is not sufficient, unless the facts alleged therein, and in the application therefor, show that it is the duty of the officer to perform the act sought to be compelled, and that he has the power to perform the same. State v. Johns (Ind.) 84 N. E. 1, 2, and cases cited; State, etc., v. Anderson, 170 Ind. 540, 85 N. E. 17. It is evident that it was not the duty of appellant to employ a teacher to teach the school at Otisco in said district No. 11 if the same had been abandoned by consolidation under section 6420 (5920g), supra. Besides, it will be observed that the proceeding was brought against appellant, “trustee of Charlestown township.” It has been held that, when the action is brought against the “trustee of the township,” as in this case, it is conclusively presumed that the action is against the trustee of the civil township, and not the school township. Jarvis v. Robertson, Trustee, 126 Ind. 281, 26 N. E. 182, and cases cited. The school township is a corporation, and has control of the schools, schoolhouses, and school funds, and is a distinct legal entity from that of the civil township. Sections 6404, 6405, Burns' Ann. St. 1908; Sections 5913, 5914, Burns' Ann. St. 1901; State v. Ogan, 159 Ind. 119, 63 N. E. 227. It was therefore held by this court, in Hornby, Trustee, v. State, 39 Ind. 102, that a suit to compel a trustee to build a schoolhouse must be against him as “trustee of the school township,” and not as “trustee of the township.” If brought against him as “trustee of the township,” as in this case, the alternative writ is bad on demurrer for want of facts. It follows from what we have said and the authorities cited that the court erred in overruling the demurrer to the “third paragraph” of the application and the alternative writ issued thereon.
The causes assigned for a new trial present the question of the sufficiency of the evidence to sustain the finding of the court, and that said finding is contrary to law. The relators insist that no question is presented as to the sufficiency of the evidence and whether the finding of the court is contrary to law because the same have not been assigned as errors in this court. The overruling of said motion for a new trial has been assigned as error in this court, and this is all that is required to present all the causes, properly assigned for a new trial, for the determination of this court. “It has been held in many cases that the ruling which forms the basis, grounds, or cause for a new trial cannot be independently assigned as error in this court.” Elliott, App. Proc. §§ 347, 349, 350; Ewbanks, Man. § 844, p. 65; section 134, p. 202; Cheek v. State (this term, No. 21,245) 85 N. E. 779;Raper v. American, etc., Co., 156 Ind. 323, 324, 59 N. E. 937, and cases cited; Bane v. Keefer, 152 Ind. 544, 547, 548, 53 N. E. 834;Cline v. Lindsey, 110 Ind. 337, 343, 11 N. E. 441, and cases cited.
It appears from the evidence that in May, 1905, school districts 8, 11, and 12 in Charlestown township were adjacent to each other, and that the schoolhouse in said district No. 8 had been destroyed by fire. The schoolhouse in said district No. 11 was in the town of Otisco. In May or June of said year 1905, appellant, the members of the advisory board of said township, and the county superintendent, went to the said town of Otisco to consult with the patrons of said school in regard to consolidating said three districts and erecting a new school building therefor. After consulting the patrons of said school at Otisco and said other districts, it was decided to build a schoolhouse sufficiently large to accommodate the children of school age in said three districts. Appellant thereby decided to consolidate said three districts. During the summer of 1905, appellant caused to be erected, in said new district No. 8, at the expense of said township, a large and commodious school building sufficient to accommodate all the children of school age in said new district composed of the old districts mentioned, and also for a high school. Teachers were employed by appellant for said new schoolhouse,...
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