Wulfkuhl v. Galehouse

168 N.W. 620, 40 N.D. 172, 1918 N.D. LEXIS 72

• Court: North Dakota Supreme Court
• Decided: July 19, 1918
• Status: Published

Opinions

Grace, J.

Appeal from the district court of Ward county, North Dakota, Honorable K. E. Leighton, Judge.

This appeal is from the order of the court granting an alternative writ of mandamus upon the hearing of the petition for the issuance of such writ. This proceeding was brought to compel the officers of Donnybrook School District No. 24 to establish and maintain a school, and to erect a schoolhouse in the southwest corner of township 150, range 87, Ward county, North Dakota, the lines of the school district in question being coextensive with the township lines.

The petition filed with the school board for the establishment of said school and the building of the school building was signed by six purported residents of such school district, and the names and number of children of school age were set forth in the petition. The petition filed with the school board contains the names of fifteen children of school age. It appears that the school board rejected the petition filed with, it for the establishing of said school and the building of the schoolhouse,. and such school board, in its answer to the petition for writ of mandamus, claimed that the board ascertained from investigation that there-were but eight children of school age legally upon the petition filed with the school board, and that King lived in the village of Ponnybrook, within a few blocks of the established school therein, and that Bland lived in the village of Aurelia, and that the children under'his custody and care were attending the established school in that village. The answer admits that the four Halden children and the four Wulfkuhl children, whose names were upon such petition, lived more than Similes from the school in said district. The petition was also signed by C. R. Bland. If he were a person charged with the support and having the custody and care of some children of school age, and it does appear that he had two children of school age, and resided in the school district at the time of the signing of the petition, then he would have legal right and it would be proper for him to sign the petition.

There were no specifications of error in this appeal, and this being true, it would seem that this court can review nothing excepting the judgment roll. If we confine ourselves strictly to the judgment roll we must hold that it amply sustains the findings of fact of the trial court and its order made thereon, but even if we consider the testimony as found in the transcript, we think it fully sustains the trial court. Testimony shows that Mr. Bland lived in the district at the time he signed the petition. He had two children of school age, and these with the four Halden and four Wulfkuhl children would be ten children, whereas only nine are required in the petition. The qualifications necessary to sign such petition for establishing a new school and the building of a new schoolhouse are that the petitioner is a resident of the school district and is charged with the support and having the custody and care of a child or children of school age who lives not less than 2-J miles from the nearest school. The petition is sufficient after it is signed by persons having these qualifications at the- time such petition is signed and filed with the school board.

We think there is no question from all that can be ascertained from the judgment roll that the petitioners had shown themselves entitled to the establishment of a school and the building of a school building as prayed for in their petition; and though the testimony is not entitled to be considered by reason of no assignments of error having been made, yet, notwithstanding this, giving full credit to all the testimony contained in the transcript, we are clear that such testimony fully and clearly establishes the right of such petitioners to have said school established and said school building built, even though it be conceded that the petitioner Ribb was not a resident of the school district at the time he signed the petition, and conceded that he should be excluded as a proper signer; but even if Ribb’s name is excluded from the petition, there still remain sufficient children of school age who are more than 2J miles from the school to entitle the petitioners to the relief asked for in their petition.

The fact that there may be another school building in another school district less than 2£ miles from the residence of the children in question avails nothing. The children in question, by securing permission, might attend a school in another district, but such other district could not be compelled to admit them. See State ex rel. Johnson v. Mostad, 34 N. D. 330, 158 N. W. 349.

The order appealed from is affirmed, with costs.