No. 15,767 | Kan. | Jan 12, 1909
This case is pending here upon a ruling of the district court of Sedgwick county sustaining a demurrer to the petition of the plaintiff in error.
Practically all of the material facts and questions of law which will remain to be litigated, should the decision of the lower court be reversed and the case remanded for trial, have been finally determined by the decision of this court in School District v. Wolf, 78 Kan. 805, 98 Pac. 237. In that case it was decided that the four sections of land which in this case it is sought to enjoin School District No. 141 from exercising jurisdiction .over were lawfully detached from School District No. 116 and attached to, and made a part of, School District No. 141. Also, that all three of the school-district officers of School District No. 116, at the time of such detachment, resided in the detached territory, and that the detachment of such territory rendered each of the offices vacant ipso facto and authorized the county superintendent of Sedgwick county to fill the vacancies by appointment.
The two actions were commenced on the same day, July 2, 1906. The order of detachment was made by the county superintendent on May 14, 1906, and, on appeal to the board of county commissioners, was affirmed and became final June 6, 1906.
John W. Adams has appeared for School District No. 116 in both of these cases, in this court and in the court below, under written authority from what we will call the old school board of School District No. 116, that is, the board as it existed prior to the detachment, and
The seventh provision of section 6127 of the General Statutes of 1901 authorizes an annual school meeting of a school district “to give such direction and make such provisions as may be deemed necessary in relation to the prosecution or defense of any suit or proceeding in which the district may be a party.” Section 6162 of the General Statutes of 1901, relating to the duties of a school director, provides:
“He shall appéar for and in behalf of the district in all suits brought by or against the district, unless other directions shall be given by the voters of such district at a district meeting.”
Upon the showing made it does not appear that Mr. Adams’s appearance or employment in the case was authorized by the school district meeting, or that any provision has been made by any school meeting of the district to prosecute the action. It follows, therefore, that the director has full general authority to represent the district, and may control the action as fully as an individual might control his own action. The formal way for him to proceed would have been, if Mr. Adams would neither proceed according to his wishes nor consent to withdraw from the action, to apply to the court for a substitution of attorneys. (See 20 Encyc. PI. & Pr. 1008.) That the other present members of the school board of School District No. 116 acted in unison with the director does not lessen his authority.
If the effect upon the rights of the school district were reasonably in doubt we should hesitate to recognize the informal procedure. But the question of the right of School District No. 116 to fax the detached
It is a matter of great public concern to both school districts involved in this action that fruitless litigation beween them should not be protracted.
The motion'to dismiss the proceeding in error is allowed.