Wharton v. De Vinna

• Decision Date: 10 May 1926
• Docket Number: 11481.
• Parties: WHARTON v. DE VINNA et al.
• Court: Colorado Supreme Court

246 P. 279

79 Colo. 450

WHARTON v. DE VINNA et al.

No. 11481.

Supreme Court of Colorado

May 10, 1926

Department 3.

Error to District Court, Saguache County; Jesse C. Wiley, Judge.

Suit by J. F. De Vinna and others against Samuel G. Wharton. Judgment for plaintiffs, and defendant brings error.

Supersedeas denied, and judgment reversed, with instructions.

J. D Pilcher and Charles H. Woodard, both of Alamosa, for plaintiff in error

CAMPBELL J.

September 26, 1924, the district court of Saguache county, in a Code mandamus suit brought by Samuel G. Wharton against the board of trustees of a school district of the county, under section 8338, C. L. 1921, rendered a peremptory final judgment or decree directing the school board to transport the minor child of the plaintiff, Wharton, to and from the schoolhouse from the residence of the plaintiff in that school district on all regular school days. There has been no review of that judgment, and no attempt by the school board in the action itself to have it modified, set aside, or changed. February 10, 1925, the school board, defendant in the mandamus suit, brought a suit in equity against Wharton the plaintiff in the mandamus suit, to enjoin the enforcement of this judgment, on the ground that the plaintiff was not at the time of the judgment, or during the pendency of that suit, a resident of the school district in question. The complaint alleges that the school board, at the time the mandamus suit was begun, believed that Wharton was a resident of the district, and, so believing, it admitted the allegation in his complaint that he was a resident thereof that at the time the board did not have correct information as to the location of this residence, and the incorrect information was not due to any negligence on its part, but was due to the fact that it believed, and it was generally understood in that neighborhood, that Wharton was a resident of this district, and the board continued to believe so until about the 23d of December, 1924, when it was intimated to its members that there was some uncertainty as to the dividing line between this, and the adjacent, district, whereupon the board procured a survey to be made of the land, and had the boundary line established on the 5th of January, 1925, which line, thus established, shows that the residence of the plaintiff Wharton was not within the outer boundaries of the school district in question, and that, if the judgment is allowed to stand, it will be unjust and inequitable to the taxpayers of the district represented by the school board. The complaint further alleged that the board did not learn of the nonresidence of Wharton until the term of court, in which the mandamus judgment was rendered, had passed, when it was too late to avail itself of the Code provision for new trials upon the grounds of newly discovered evidence; that the board has no remedy at law, and can be relieved from the terms of the judgment only through the equitable jurisdiction of the court. An injunction is prayed for to enjoin...