Whitmer v. Board of Directors of Independent School Dist. of White Pigeon

• Decision Date: 14 April 1930
• Docket Number: 39834
• Citation: 230 N.W. 413,210 Iowa 239
• Parties: MARGARET WHITMER et al., Appellants, v. BOARD OF DIRECTORS OF INDEPENDENT SCHOOL DISTRICT OF WHITE PIGEON et al., Appellees
• Court: Iowa Supreme Court

230 N.W. 413

210 Iowa 239

MARGARET WHITMER et al., Appellants, v. BOARD OF DIRECTORS OF INDEPENDENT SCHOOL DISTRICT OF WHITE PIGEON et al., Appellees

No. 39834

Supreme Court of Iowa, Des Moines

April 14, 1930

Appeal from Cedar District Court.--F. L. ANDERSON, Judge.

Remanded, with directions.

Thompson & Thompson, A. R. Whitmer, and J. C. France, for appellants.

Donnelly & Lynch and M. C. Hamiel, for appellees.

WAGNER J. MORLING, C. J., and EVANS, STEVENS, DE GRAFF, and KINDIG JJ., concur.

OPINION

The opinion states the case.--Remanded, with directions.

WAGNER J.

The plaintiff Cyril Whitmer alleges in the petition, in substance, that he is the father of three minor children of school age, who reside with him and his wife upon the southwest quarter of the southwest quarter of Section 2, Township 79, Range 2, in Sugar Creek Township, Cedar County; that the defendants Kiser, Laucamp, and Schroeder are the directors, and Ketelsen the secretary, of the Independent School District of White Pigeon, in said township; that the defendant McCormick is the county superintendent of schools of Cedar County; that, in the year 1872, the White Pigeon School District was originally formed and created from territory comprising the aforesaid 40-acre tract, which is still a part of said district; that, on September 16, 1878, the board of directors of said district adopted a resolution setting over said 40 acres into the Pleasant Hill Independent School District, immediately to the west of the White Pigeon District; that the records of the proceedings of the board of directors of the Pleasant Hill District fail to show any concurrent action or acceptance by said district of the real estate attempted to have been set over into said district; and that the records of the proceedings of neither district show any order by the superintendent of schools detaching said 40 acres from the White Pigeon District and attaching it to the Pleasant Hill District; that the county superintendent of schools never made a finding that any stream or other natural obstacle existed between the home of plaintiff on said 40 acres and the schoolhouse situated in the White Pigeon District (it being the claim of the plaintiff that there was no compliance with Sections 1797 and 1806 of the Code of 1873); and that the board of directors of the White Pigeon School District have denied school privileges to his three minor children. He prays that the court enter a decree fixing and determining the boundary lines of the Independent School District of White Pigeon; that the aforesaid 40 acres be decreed to be an integral part of said district; that a writ of injunction issue, restraining the defendants from interfering with the attendance of said minor children in the public school maintained in said district, and from prohibiting or denying school privileges to said children.

The defendants allege in their answer, in substance, that said 40-acre tract was transferred from the White Pigeon District to the Pleasant Hill District by action of the board of directors of each district, and by the action of the superintendent of schools; that such action at all times was acquiesced in by the owner of said 40 acres, and by both districts; that, upon the enactment of Section 4140 of the present Code, 1927, the board of each district filed in the office of the county superintendent of schools a plat showing the boundary of each of said districts; that said plats show that said 40-acre tract is located in the Pleasant Hill District; and that the county superintendent of schools approved such plats. The defendants further allege in their answer:

"That said Independent School District [Pleasant Hill District] is a necessary party to this case, and the failure to make such district a party constitutes a fatal defect of parties, and the court can for such reason grant plaintiffs no relief herein."

Upon trial, the court found and decreed:

"That Peter Whitmer was the owner and occupant of the 40 acres of land described in plaintiffs' petition in the year 1878, and that there was some trouble then existing between the board of the White Pigeon District and the Pleasant Hill District, or between one of the boards and Peter Whitmer, respecting the attendance of his children in one or the other of said districts; and that Peter Whitmer wanted to be taken out of the White Pigeon District; that action was taken by the board of directors of the White Pigeon District; and that they adopted a motion or resolution in the year 1878, setting over the said 40 acres into the Pleasant Hill District; that the records of the board of the Pleasant Hill District show no formal action by said board; that Peter Whitmer acquiesced in such change, and sent his children to the Pleasant Hill District; and that his children of school age were thereafter enumerated as residing in the Pleasant Hill District; and that the directors of the Pleasant Hill District thus acquiesced in such change; and that, under Code of 1924, plats were filed in the office of the county superintendent of schools by the secretary of each of said districts, showing said 40 acres to be within the Pleasant Hill District; that, after such lapse of time, the said Peter Whitmer would be estopped from claiming that his said 40 acres was within the White Pigeon District; and that the plaintiffs are also so estopped. The plaintiffs' petition is dismissed. Judgment against plaintiffs for costs."

From the aforesaid judgment and decree, plaintiff has appealed.

At the threshold of our examination, we are met with a legal obstacle which prevents a determination of the case upon the merits. It is apparent that the decisive question must be as to whether the aforesaid 40-acre tract is an integral part of the White Pigeon District or of the Pleasant Hill...