122 Minn. 59 | Minn. | 1913
Action by two resident voters and taxpayers of school district No. 28 in Otter Tail county, to enjoin the district and the officers thereof from abandoning the present schoolhouse site and the school thereon, .and from erecting a new schoolhouse upon the northeast corner of The northeast quarter of the southeast quarter of section 12, Buse township in the said county, and from issuing certain bonds.
The cause was tried to the court without a jury.
Bindings were made, which, in so far as necessary to elucidate the •questions involved on this appeal, are substantially as follows:
On April 8, 1911, the electors of the district duly assembled for The purpose of voting upon two new schoolhouse sites described in The petition for and the call of the meeting, the one as being located •on the northeast corner of the northeast quarter of the northeast •quarter of section 12, and the other as on the southeast corner of the northeast quarter of the southeast quarter of section 12, in the proper Township. At the meeting 21 votes were cast for the first location, .and 2d for the other, but that the description first mentioned was inserted in the petition, notice, and record of the proceedings by mistake of the clerk, and some of the voters at the meeting believed that the site designated thereby was in fact the northeast corner of the northeast quarter of the southeast quarter of the same section, which description will hereinafter be referred to as the “North Site.”
The court further found, in response to one of the defendants’ •contentions to the effect that, in consequence of certain written and oral statements made by the officers in charge of the meeting to those present, the 27 votes mentioned were really cast for the North Site, thus accomplishing its selection, that the proceedings were abortive to effect such result, and that the election resulted in a failure to select any new site.
The court also found that two acres of the land last referred to were later purchased by the board and became the property of the district by ratification, and that certain proceedings authorizing a
The complaint, after setting out the preliminary proceedings leading up to the meeting and the holding thereof, as recited in the findings, alleged, among other things, that no other or different proceedings were had thereat, except to vote for the two sites described in the call, and that the respective sites received the number of votes each as above stated. It then recites “that the residents and voters of said district did not authorize at said meeting, nor have they at any other meeting, either special or annual, authorized, as required by law, the change of the schoolhouse site in said district.” The substance of the prayer for relief is stated at the head of this opinion. The sole defense set up in the answer consisted of the alleged result of the oral and written statements made at the meeting, as above stated, no claim being made as to any other selection. The reply denied that the electors voted “according to law upon any site for the purpose of changing or abandoning the present schoolhouse site,” and specifically denied that, at the meeting in question or any other, they selected the location as claimed by the defendants as “and for a new schoolhouse site * * * or any other site.” Other like allegations followed. It does not appear that the present contention
With this recitation of the issues involved in the inquiry in mind, let us examine the contention of the appellants.
“The very object and design of all pleading by the plaintiff,” says Mr. Pomeroy in his work on Remedies and Remedial Rights, § 554, “and of all pleading of new matter by the defendant, is that the adverse party may be informed of the real cause of action or defense relied upon by the pleader, and may thus have an opportunity of meeting or defeating it if possible at the trial.”
Mr. Dunnell, in his Minneasota Pleading, § 281, says:
“A complaint should be drawn in accordance with a definite theory as to the nature of the cause of action and the relief to which the plaintiff is entitled,” and quotes with approval the following excerpt from a modern Indiana case:
“It is essential to the formation of issues and the intelligent and just trial of causes, that a complaint should proceed upon a distinct and definite theory. It would' violate all rules of pleading to permit a complaint to be construed as best suited the exigencies of the case; to allow such a course of.procedure would produce uncertainty and confusion, and materially trench upon the right of the defendant to be informed of the issue he is required to meet.”
See also 2 Dunnell, Minn. Dig. § 7498. Correlated with these rules is the further one stated in Davis v. Wakelee, 156 U. S. 680, 689, 15 Sup. Ct. 555, 39 L. ed. 578, and approved by this court in Tozer v. Ocean Accident & Guarantee Corp. 94 Minn. 478, 485, 103 N. W. 509, 511, as follows:
“It may be laid down as a general proposition that, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.”
Dor recent applications of this rule, see Behrens v. Kruse, 121 Minn. 90, 140 N. W. 339; Denoyer v. Railway Transfer Co. 121 Minn. 269, 141 N. W. 175. The plaintiffs prevailed upon the issues
The plaintiffs make the point that the petition by which the proceedings for the bond issue were instituted, though containing twelve signatures, was nevertheless insufficient because two of such signatures were of members of the board. The statute, Laws 1907, p. 133, c. 122,
Coming now to the question of the validity of the bonds: While statutory provisions regulating municipal bond issues are construed as mandatory, and we have no intention to depart from this rule in any substantial respect, yet is there a probability in the present case that any elector of the district who voted in favor of the issuance of the bonds would have done otherwise had the present situation been involved? The practical proposition presented to the electors concerned the advisability of the action for the purpose stated. No question can be raised of inherent invalidity, and the results of the change effected by the postponement in the dates of maturity are inconsequential. Said Chief Justice Start in Goulding v. Ferrell, 106 Minn. 44, 117 N. W. 1046, in speaking of the maxim de minimis: “The basis of the maxim is that mere trifles and technicalities must yield to practical common sense and substantial justice.”
There is no merit in the claim that the site purchased contained less than two acres. ■
Order affirmed.
[R. L. Supp. 1909, § 789-2 to 789-11.]