Hess v. Dodge

116 N.W. 863, 82 Neb. 35, 1908 Neb. LEXIS 219

• Court: Nebraska Supreme Court
• Decided: June 4, 1908
• Docket: No. 15,178
• Status: Published

Opinion

Fawcett, C.

This is a suit for an injunction to restrain the defendants from changing the site of the school house in school district No. 4, Red Willow county, from appropriating the moneys of the district for the erection of a school house on said new site, and for other relief of a similar character. From a decree favorable to defendants, plaintiff appeals.

In paragraph 1 of his petition plaintiff alleges: “(1) That he is a resident taxpayer and qualified voter of school district No. 4 of Red Willow county, Nebraska.” This was a material allegation, without which the petition would have been demurrable. The answer of defendants is a general denial. So far as the record discloses, plaintiff did not attend upon the trial of the case, and there is an entire absence of proof even tending to show that he is a taxpayer or qualified voter, or even a resident, of the school district. Plaintiff having utterly failed to prove this material allegation of his petition, which stood denied by defendants’ answer, we must decline to examine further into the case.

We therefore recommend that the judgment of the district court be affirmed.

Calkins and Root, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.