Wahpeton Public School Dist. No. 37 v. North Dakota Ed. Ass'n

Decision Date19 March 1969
Docket NumberNo. 8505,8505
Citation166 N.W.2d 389
PartiesWAHPETON PUBLIC SCHOOL DISTRICT NO. 37, a Public Corporation, Plaintiff and Respondent, v. The NORTH DAKOTA EDUCATION ASSOCIATION, a Nonprofit Corporation, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. An order continuing, modifying, or quashing an ex parte restraining order after a hearing on notice is an appealable order.

2. Judicial power vested in the courts of this State extends only to the determination of actual controversies between the parties, properly before the court, and does not authorize the court to give advisory opinions on moot questions.

Lewis & Bullis, Wahpeton, for plaintiff and respondent.

Rausch & Chapman, Bismarck, for defendant and appellant.

STRUTZ, Judge (on reassignment).

The plaintiff school district, finding its finances in a depleted condition, submitted to the voters of the district the question of increasing its taxing authority. This proposal was rejected by the voters. Because of such defeat at the polls, the school board, the governing body of the school district, found that funds available to the district were insufficient to meet the demands of its teachers for increased salaries. The plaintiff thereupon determined that the only way such demands could be met was by the elimination of certain courses from its curriculum. A resolution eliminating certain courses thereafter was adopted, thus eliminating certain teaching positions in the system.

The defendant, representing a vast majority of the teachers in the plaintiff's system, thereupon demanded that the plaintiff restore such teaching positions, and suggested that plaintiff district obtain the funds needed for salary increases for teachers by the issuance of certificates of indebtedness or by some other form of deficit spending. During the course of negotiations between the parties, representatives of the defendant impressed upon the plaintiff school district that the 'onus' of failing to accede to the teachers' demands would be on the plaintiff, and that if matters were not settled to the satisfaction of the teachers, 'sanctions' could be imposed against the school district which would include recommending to members of the defendant association and to members of the National Education Association that such members do not consider employment by the plaintiff district.

A meeting between the parties was set for April 10, 1968. Before that meeting convened, however, the plaintiff went into the district court and obtained a temporary restraining order against the use of sanctions by the defendant. Thereupon the Wahpeton Education Association, many of whose members also are members of the defendant State association, voted to impose sanctions and requested the defendant to support it in its action.

The temporary injunction issued by the court was served upon the defendant, requiring the defendant to show cause, if any it had, why the defendant, its officers, employees, or agents, should not be restrained and enjoined, pending hearing, from imposing sanctions against the plaintiff, or from recommending to defendant's members or to members of the National Education Association that they do not accept employment with the plaintiff school district. The order to show cause was set for hearing on April 24, 1968, at three o'clock p.m.

The defendant, on being served with summons and complaint and with the restraining order, filed its answer and counterclaim, together with its petition for a temporary injunction restraining the plaintiff school district from interfering with the defendant or its members, restraining the plaintiff from issuing or offering any contract to any teachers with regard to any position with the plaintiff school district, during the time the defendant was restrained and enjoined by the order previously issued by the court, and from further contacting any organization for the purpose of recruiting teachers for the plaintiff school district. A temporary order so restraining the plaintiff was signed by the court, and an order to show cause why such temporary restraining order should not be made permanent was set for hearing at the same time and place at which the order to show cause in the proceedings for injunction brought by the plaintiff was to be heard.

Both parties appeared before the court on the 24th day of April 1968 at three o'clock pursuant to such orders to show cause. After hearing, the court issued its order which provided:


'That the temporary restraining order issued against the defendant on the 10th day of April, 1968 be continued for a period of two weeks from and after the 24th day of April, 1968, at which time said matter will be heard on its merits.


'That the temporary restraining orders issued by this Court against the plaintiff on the 15th day of April, 1968 and the 19th day of April, 1968 be, and they hereby are dissolved; provided however, that those teachers in the Wahpeton School District who signed contracts issued by the School Board on April 17, 1968 shall have until 5:00 P.M. on April 26, 1968 to withdraw said contracts if they so desire, and provided further that those teachers who submitted resignations as a result of the issuance of said contracts shall have until 5:00 P.M. on April 26, 1968 to withdraw said resignations.'

From such order, dated April 25, 1968, the defendant has taken the appeal to this court.

The first question which we must determine is whether the order appealed from is an appealable order. This court has held that appeals from temporary or interlocutory orders will not lie, except in cases where appeal is expressly authorized by statute. Nordenstrom v. Swedberg, 123 N.W.2d 285 (N.D.1963).

Such orders, where not made expressly appealable, are reviewable on appeal from the judgment, if the order and the facts essential to the review are embodied in the settled statement of the case and made a part of the record on appeal. Burdick v. Mann, 59 N.D. 611, 231 N.W. 545 (1930).

Section 28--27--02, North Dakota Century Code, sets out what orders are appealable. Subsection 7 of that section provides that an order made by the district court or judge thereof, without notice, is not an appealable order; but an order made by the district court after hearing is had upon notice

'* * * which vacates or refuses to set aside an order previously made without notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been made upon notice.'

We therefore must determine whether the orders of the district court, made without notice, which restrained the parties from doing certain things, would have been appealable orders had they been made on notice. If they were appealable, then the order, after hearing, which vacated such previous orders in part and which refused to set aside and vacate such previous orders in part, would be an appealable order.

The previous orders restrained and enjoined the respective parties from doing certain acts. Subsection 3 of Section 28--27--02 provides, among other things, that an order which grants, modifies, or dissolves an injunction is an appealable order.

The original order signed by the district court, without notice, enjoined the defendant from doing any act which might interfere with the carrying out of the functions of the plaintiff as required by law; and from imposing sanctions or from recommending to members of the North Dakota Education Association or the National Education Association, or any student affiliates of either, that they do not consider employment by the plaintiff. Had this order been made upon notice, it would, in our opinion, have been an appealable order. Thus, when the district court, after hearing, refused to set aside the order, the order which refused to vacate the original order, which had been made without hearing, was an appealable order under Section 28--27--02(7), North Dakota Century Code. The mere fact that the district court refuses to vacate or dissolve the order for a period of an additional two weeks only would not, in our opinion, make this a nonappealable order merely because it is a temporary order. If the trial court could make this order nonappealable by refusing to set aside the injunction for a period of time, to wit, two weeks in this case, instead of vacating or refusing to vacate the order, it could issue a series of such orders, each of which would refuse to vacate or dissolve the injunction for a two-week period and thus prevent an appeal from such order. Or it could issue a temporary order for two months instead of for two weeks.

It will be noted that in the order appealed from, the district court did dissolve the temporary restraining order previously issued ex parte (on application of the defendant) against the plaintiff school district. This portion of the order thus was an order that dissolved an injunction against the plaintiff as well as an order which refused to modify or dissolve an injunction against the defendant, issued after hearing. As such, it is held to be an appealable order under the provisions of Sections 28-- 27--02(3) and 28--27--02(7), North Dakota Century Code. We so held in Gillies v. Radke, 78 N.D. 974, 54 N.W.2d 155 (1952), and in State ex rel. Olson v. Lynch, 138 N.W.2d 785 (N.D.1965).

We next come to the issue of whether the question raised by the appeal is moot. Both parties concede that, immediately after the entry of the order appealed from, negotiations between the plaintiff and the teachers were resumed and that the controversy was settled within two days thereafter. Thus, at the time the appeal was taken, a full settlement of the issues between the parties had been reached.

Ordinarily, an appeal will be dismissed if the question raised by the appeal has become moot or if, without fault of the...

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