20 Kan. 76 | Kan. | 1878
The opinion of the court was delivered by
This was an action brought by School District No. 70, of Greenwood county, to recover a judgment for $603 against School District No. 49, of the same county.
It appears from the record that on 13th June 1874, School District No. 70 was created out of territory belonging at that time to School District No. 49; .that District No. 49 was allowed to retain all the property belonging to the old district, and in consideration therefor was adjudged and ordered to pay to District No. 70 the sum of $603. This sum was never paid, and on 4th March 1876 this action was commenced therefor. Judgment was rendered in favor of the plaintiff below, and the defendant below now brings the case to this court, and claims that the judgment of the court below should be reversed for the following reasons:
“First: Because the plaintiff’s petition is fatally defective in not stating that the defendant below was duly notified, or had knowledge of the division of the property of the district, and of the amount it was required to pay to the plaintiff below.
“Second: Because the evidence utterly fails to show that*80 the defendant below had any knowledge that the property of the district had been divided, or that it was owing the plaintiff any sum whatever.
“Third: Because the plaintiff below cannot maintain an action for a recovery of a judgment for the claim sued on.”
I. The first question was raised in the court below by a general demurrer to the plaintiff’s petition. This demurrer was overruled, and the defendant then filed an answer denying generally all the allegations of the plaintiff’s petition. This answer was not verified by affidavit. The evidence did but little if anything more than to sustain the allegations of the petition. Hence the sufficiency of the petition still remains a question in the case.
We do not think that the petition is fatally defective for the reasons given by the plaintiff in error.- It sufficiently alleges among other things, that on 13th June 1874 said District No. 70 was duly created and “organized out of said defendant’s territory;” that it then became and has since been “a body corporate, duly authorized under the laws of Kansas;” that the defendant kept the property of the old district, and the county superintendent of public instruction awarded to the plaintiff said $603 as aforesaid; “that said defendant has refused to pay the said sum of $603 to the said plaintiff, although often requested to do so, and that the same remains due and unpaid.” Now as this suit was not commenced until nearly two years after the creation and organization of School District No. 70, and as School District No. 49 had often been “requested” to pay said $603, and had “refused” to do so, it would not seeta probable that School District No. 49 remained all that time wholly ignorant of all these things. But what kind of a notice should School District 49 have had? The only notices required (in June 1874,) to be given by any person, or to any person, in any matter connected with the formation of a new school district, were notices merely to the people of such new district, and these were mere notices of the boundaries and number of such new district and of the time and place for holding the first district meeting. (Laws of 1872, page 372, §1.) And the law then in
II. The evidence fully sustained the petition; and it was. shown by the evidence that the treasurer of School District No. 70 actually made a demand of School District No. 49 for said $603. Besides, as we have before stated, the answer denying the allegations of the plaintiff’s petition was not verified by affidavit.
III. Can this action be maintained? The plaintiff in error says that it cannot, because nothing is gained by the judgment rendered therein. The reason given by the plaintiff in error is not sufficient, for something is gained by the judgment. If the final judgment in the action should be for the defendant, it would end all controversy between the two districts with reference to said $603. If it should be for the plaintiff however, then, while the judgment could not be enforced by execution, yet it would conclusively and finally settle the question that the defendant owed the plaintiff said $603. The plaintiff might still have to resort to its remedy of mandamus to compel the officers of district No. 49 to levy the proper tax to pay said judgment. But in the prosecution of such remedy the judgment rendered in this case would be conclusive evidence that district 49 owed said amount. Without such judgment the officers sued in mandamus might set up the defense that their district did not owe any such amount. But with such judgment they could not make any such defense available. It will therefore be seen that such an action as this may accomplish something, whether the judgment be rendered for or against the plaintiff. The only question in a case like this may be, whether one district owes the other anything; and if so, then it will certainly not be claimed that mandamus is a more proper remedy. The officers of
It is possible that the plaintiff’s petition was defective in not stating that there was a dispute as to whether 'the defendant owed the plaintiff anything; but if such defect existed then the defendant amply supplied such defect by showing in its answer that everything was disputed. If the defendant had filed an answer admitting that it owed the plaintiff $603, as alleged in the plaintiff’s petition, and alleging that such indebtedness had never been disputed, but that it was willfulness on the part of the officers of the district that had caused the delay in levying the tax, and if it had then been shown that this answer was true, it is possible that the plaintiff’s action should have been abated, as a useless proceeding. But upon this question we express no opinion. We think however that the action, as in fact prosecuted and defended, was properly sustained by the court below.
The judgment of the court below will be affirmed.
