30 Kan. 377 | Kan. | 1883
The opinion of the court was delivered by
This was an action brought by William Hemme against School District No. 4, Osage county, Kansas, on a school order for $55.62, which order seems to be legal and valid upon its face. The school district answered. Afterward, and on April 12, 1881, the case was regularly called for trial. The attorney for the school district was present, but none of the officers of the school district were present, or
Upon the pleadings and the evidence, the court instructed the jury, among other things, as follows:
“ The officers of a school district, when acting together as a school board, are authorized by law and have the power to ‘provide the necessary appendages’ for the school house, and*380 a school-district order issued by them for such appendages would be valid and binding on the district; but a well is not a necessary appendage to a school house, within the meaning of the law, and a school board cannot bind the district for the digging or boring of a well, unless they are authorized to do so by some annual or special meeting of the voters of such district, lawfully assembled.”
The jury found a verdict in favor of the defendant and against the plaintiff, and judgment was rendered accordingly. The plaintiff brings the case to this court for review, and claims that the court below erred, first, in entertaining and sustaining the original motion for a new trial; second, in instructing the jury that “a well is not a necessary appendage to a school house.” We shall consider these alleged errors in their order.
I. It will be remembered that the original motion for the new trial was filed at the term at which the original trial was had and the original judgment rendered, and the motion was made upon grounds authorized by the statute. (Civil Code, §306, subdiv. 3; §568, subdiv. 7.) It is claimed, however, by the plaintiff, that the motion was not filed within proper time. Now it is true that the motion was not filed within three days after the decision of the court; but still the defendant attempted to show — and the court evidently found the showing sufficient — that the defendant was unavoidably prevented from making an appearance on the day of trial and defending the action, or from filing its motion for a new trial at an earlier date than it did file the same. We think this was sufficient. (Civil Code, § 308.)
The motion would also have been sufficient under subdivision 7, § 568, of the civil code, if it had been put in the form of a petition; but as it was made at the same term of the court and so soon after the trial, and as the plaintiff had as ample opportunity to defend against the facts set up in the motion and set up in the defendant’s affidavits, as he would have had if the facts had been set forth in a petition, probably the fact that the application was in the form of a motion, and not in the form of a petition, is not very mate
II. We are inclined to think that the district court erred in instructing the jury that “a well is not a necessary appendage to a school house.” Eor if such is the law, then there is no authority for a school board or a school district to construct a well, or a fence, or a privy upon the grounds upon which the school house is situated. Section 25, article 4, chapter 122, of the Laws of 1876, (Comp. Laws of 1879, p. 830,) provides that “ the district board shall provide the necessary appendages for the school house during the time a school is taught therein.” Unless this language can be construed so broadly as to authorize the school board to construct a well, or a fence, or a privy upon the grounds upon which the school house is situated, it would seem that neither the board nor the school district itself has any authority to construct any such improvements. We would therefore think that the legislature must have used the word “appendage” in said §25, and also in subdivision 5, §11, art. 3, of said chapter, in a very broad and comprehensive sense, and intended to include these improvements as well as many other things which might come within the general definition of “appendages.” Webster defines the word “ appendage” as “ something added to a principal or greater thing, though not necessary to it, as, a portico to a house.” Worcester defines the word as “ something added, attached, or annexed; a concomitant.” As before stated, we think the word ought to be construed broadly, so as to include a well constructed on the same premises on which the school house is situated; and therefore we think the court, instead of instructing the jury
The judgment of the court below will be reversed, and the cause remanded for a new trial.