Fisk, District Judge.
This is an appeal from a judgment rendered by the District Court of Richland county directing the issuance of a peremptory writ of mandamus compelling the officers of Dwight and Ibsen school districts to levy a tax upon the property of the districts to pay their pro rata share of certain judgments recovered against Dwight school township. This litigation has been before this court twice before, and for a full statement of the facts see opinion of Corliss, J., in 3 N. D. 249, 55 N. W. Rep. 587, 28 L. R. A. 649, and 7 N. D. 418, 75 N. W. Rep. 795. In the first appeal it was strenuously insisted by counsel for Dwight school township that there was no liability, upon the ground, among others, that, as the indebtedness to collect for which an action was commenced was incurred by school district No. 22, Dwight school township, which was organized under Chap. 44 "of the Laws of 1883, and [88] which included within its boundaries the old district No. 22, and certain other districts, did not become liable until there had been a settlement between the several old districts included within such school township. He contended that, until the old districts adjusted their differences between themselves and the new school township, the new school township organization was not completed, and hence that no liability attached. In other words, that settlement between the several old districts within the school’ township created by the law of 1883 was a condition precedent to the absolute liability of the newly-created school township. This court, upon that appeal, overruled this contention, holding that such settlement was not a condition precedent to the organization or liability of the school township, and affirmed the judgment of the District Court holding the to-wn- - ship liable. See 3 N. D. 249, 55 N. W. Rep. 587, 28 L. R. A. 649. Subsequently, and upon application of defendants’ counsel, this court attempted to modify said judgment by directing that a provision be inserted therein as follows “This judgment is to be enforced subject to the provisions of sections 136-141, chapter 44, Laws 1883, the debt on which it is rendered being a debt subject to equalization as therein provided.” This modification was directed under the belief that the judgment creditors could not compel the levy of a tax by the defendants until such creditors had secured an equalization of taxes under the statute. This was clearly erroneous, as these sections have no relevancy to the question at all, and the attempted modification is without any force or effect whatever-. As said by Corliss, J., in 7 N. D. 421, 75 N. W. Rep. 796: “The sections of the statute subject to which we said the judgment must be enforced have no relevancy whatever to the question of the enforcement of such judgment; and the clause inserted in our judgment, was mere idle surplusage.” Under the provisions of section 144 of said chapter 44, Laws 1883, all debts of the old districts were assumed by and became the debts of the new school township, and all judgments recovered against the latter upon such debts should be enforced the same as any other judgments against such townships. It follows, therefore, that the plaintiffs have an unqualified judgment against Dwight school township which they are entitled to collect in the usual manner. The entry of such judgment was a final adjudication as to the liability of such school township, and upon affirmance by this court all controversy as to such liability was thereby forever foreclosed. But, even if this were not so, we would unhesitatingly approve the reasoning, and reassert the doctrine enunciated in the first opinion of this court upon this branch of the case as reported in 3 N. D. 249, 55 N. W. Rep. 587, 28 L. R. A. 649, and we expressly disapprove and overrule the language used in the opinion in 7 N. D. 418, 75 N. W. Rep. 795, in so far as it conflicts with these views. What was said in the latter opinion upon this subject could not change the law of the case as settled in the first action; and, furthermore, such language was purely obiter [89] dicta, as we held that there was no appeal, the order attempted to be appealed from not being a final order. Counsel for appellants presents a very plausible argument in support of his position, but the fallacy thereof consists in the fact that he builds his entire argument upon a false premise. He asserts that the judgment as modified by this court provides for its payment only in a certain manner, and that this, whether right or wrong, is the law of the case, etc. It stands with exactly* the same. force and effect as though no modification had been attempted. The clause attempting to modify it was wholly meaningless and nugatory, and hence every one must treat the judgment as an unconditional judgment for the payment of money to be enforced as all judgments are enforced.
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Fisk, District Judge.
This is an appeal from a judgment rendered by the District Court of Richland county directing the issuance of a peremptory writ of mandamus compelling the officers of Dwight and Ibsen school districts to levy a tax upon the property of the districts to pay their pro rata share of certain judgments recovered against Dwight school township. This litigation has been before this court twice before, and for a full statement of the facts see opinion of Corliss, J., in 3 N. D. 249, 55 N. W. Rep. 587, 28 L. R. A. 649, and 7 N. D. 418, 75 N. W. Rep. 795. In the first appeal it was strenuously insisted by counsel for Dwight school township that there was no liability, upon the ground, among others, that, as the indebtedness to collect for which an action was commenced was incurred by school district No. 22, Dwight school township, which was organized under Chap. 44 "of the Laws of 1883, and [88] which included within its boundaries the old district No. 22, and certain other districts, did not become liable until there had been a settlement between the several old districts included within such school township. He contended that, until the old districts adjusted their differences between themselves and the new school township, the new school township organization was not completed, and hence that no liability attached. In other words, that settlement between the several old districts within the school’ township created by the law of 1883 was a condition precedent to the absolute liability of the newly-created school township. This court, upon that appeal, overruled this contention, holding that such settlement was not a condition precedent to the organization or liability of the school township, and affirmed the judgment of the District Court holding the to-wn- - ship liable. See 3 N. D. 249, 55 N. W. Rep. 587, 28 L. R. A. 649. Subsequently, and upon application of defendants’ counsel, this court attempted to modify said judgment by directing that a provision be inserted therein as follows “This judgment is to be enforced subject to the provisions of sections 136-141, chapter 44, Laws 1883, the debt on which it is rendered being a debt subject to equalization as therein provided.” This modification was directed under the belief that the judgment creditors could not compel the levy of a tax by the defendants until such creditors had secured an equalization of taxes under the statute. This was clearly erroneous, as these sections have no relevancy to the question at all, and the attempted modification is without any force or effect whatever-. As said by Corliss, J., in 7 N. D. 421, 75 N. W. Rep. 796: “The sections of the statute subject to which we said the judgment must be enforced have no relevancy whatever to the question of the enforcement of such judgment; and the clause inserted in our judgment, was mere idle surplusage.” Under the provisions of section 144 of said chapter 44, Laws 1883, all debts of the old districts were assumed by and became the debts of the new school township, and all judgments recovered against the latter upon such debts should be enforced the same as any other judgments against such townships. It follows, therefore, that the plaintiffs have an unqualified judgment against Dwight school township which they are entitled to collect in the usual manner. The entry of such judgment was a final adjudication as to the liability of such school township, and upon affirmance by this court all controversy as to such liability was thereby forever foreclosed. But, even if this were not so, we would unhesitatingly approve the reasoning, and reassert the doctrine enunciated in the first opinion of this court upon this branch of the case as reported in 3 N. D. 249, 55 N. W. Rep. 587, 28 L. R. A. 649, and we expressly disapprove and overrule the language used in the opinion in 7 N. D. 418, 75 N. W. Rep. 795, in so far as it conflicts with these views. What was said in the latter opinion upon this subject could not change the law of the case as settled in the first action; and, furthermore, such language was purely obiter [89] dicta, as we held that there was no appeal, the order attempted to be appealed from not being a final order. Counsel for appellants presents a very plausible argument in support of his position, but the fallacy thereof consists in the fact that he builds his entire argument upon a false premise. He asserts that the judgment as modified by this court provides for its payment only in a certain manner, and that this, whether right or wrong, is the law of the case, etc. It stands with exactly* the same. force and effect as though no modification had been attempted. The clause attempting to modify it was wholly meaningless and nugatory, and hence every one must treat the judgment as an unconditional judgment for the payment of money to be enforced as all judgments are enforced.
This disposes of all questions raised by appellants except one, which we -will now briefly consider. After the liability of Dwight school township was fixed by judgment, the territory originally constituting such school township was divided into two civil townships. By this division two new school districts were by law created, and they are known as “Dwight” and “Ibsen” school districts, respectively. Both immediately organized themselves into school corporations, and both were made parties, and answered in this proceeding. Each, by the act of incorporating, became liable for its proportionate share of the indebtedness of the old township. The trial court apportioned such indebtedness according to the taxable property in each district, but counsel contends that the court had no' right to do this, and that such apportionment should not be based upon the taxable property, and he refers to those provisions of the law relating to settlements between districts and the levy of an equalization tax to adjust such differences. We must overrule this contention, as we are convinced that each district should be required to levy a tax to pay its just proportion of the indebtedness of the old district according to the proportion of its taxable property. In other words, the entire taxable property which was formerly included in the school district is liable for the payment of this indebtedness, and by dividing the township each new district would be liable to such pro rata share of the indebtedness as the amount of .its taxable property bears to the entire indebtedness, and the new districts thus formed would be left to adjust between themselves all differences as to their assets and liabilities. The creditors have no concern with their adjustment of such differences. Some courts have gone to the extent of holding that each new district is liable, and may be required to pay the entire indebtedness of the old district, and then look to the other district or districts for contribution. Plunket’s Creek Tp. v. Crawford, 27 Pa. 107; Hughes v. School Dist., 72 Mo: 643. In the Missouri case it was held that where, by statute, a municipal corppration is abolished, and several new ones are created in its stead, and no provision is made as to the payment of existing debts, each of the new corporations is liable for them all; and in the latter case it was held that on the division of a township [90] each fraction remains liable for the whole debt owing by the old township, and that, if one pays the whole amount, it lays the foundation for contribution. We are clearly of the opinion that these school districts are each liable for at least their proportionate share of these judgments according to their taxable property, and that their officers may be -required by mandamus to levy a tax sufficient to pay the same. Finding no error, the judgment of the District Court, is affirmed. *
(85 N. W. Rep. 988.)
Morgan, J., being disqualified, Judge Fisk of the First Judicial District sat by request.