139 N.W. 109 | S.D. | 1912
This is an appeal by the defendant from a judgment entered in a mandamus proceeding against the defendant as treasurer of .the independent school district of the town of Claremont, of the counties of Brown and Marshall. The affidavit of the relators is very lengthy, and we shall only attempt to give a synopsis of the same in this opinion.
It is stated in substance in the affidavit for the peremptory writ of mandamus that the plaintiffs are the duly qualified and acting board of education of the independent school district of the town of Claremont; that the said independent school district is a corporation and on.e of the political subdivisions of this state; that at a meeting of said board of education duly and regularly called and held in said district on the 27th day of March, 1912, at which all the members of said board were present, a resolution was duly passed by said board that it had become necessary in order to raise sufficient funds to erect a suitable school building for said district to' borrow -the sum of $9,500 by issuing and selling the bonds of said district for that amount; and that the president of the board of trustees be requested to call ¡an election of the electors of said school district on the 9th day of April, 1912, for the purpose of taking the sense of the voters of said district upon the question of issuing bonds; that thereafter the said ■board of education duly requested the president of the board of trustees to, call an election of the electors upon that day for the purpose set forth in the resolution aforesaid, and in .pursuance thereof the president of said board of trustees duly issued a ■proclamation and notice of holding of said election, and in and by the terms of said notice and proclamation by said president there, was set forth the amount of said bonds propsed to be issued and asked for, and the purpose for which the same were to be used; that said proclamation and notice was duly published and posted as required by law; -that pursuant to said notice and procla
Upon the day named in the alternative writ, the defendant appeared and filed an answer in which 'he denied the allegations contained in the affidavit or complaint not thereinafter specifically admitted. He then admitted the material allegations of the affidavit as to proceedings taken by the board and the electors of the school district. The defendant for further answer alleged that a suit was instituted by parties named to detach certain portions ot
It is further stated in the record of the case that upon return day plaintiffs and respondents made the following motion, to-wit: “The relator moves the court for a judgment upon the (alternative) writ -of mandamus and the answer of -the defendants herein, .and asks the court to issue its peremptory writ as prayed for, notwithstanding- the answer, on the ground that the answer does not state facts sufficient to constitute any defense to the facts set forth in the said writ.” Defendant thereupon moved the court to- quash the alternative writ on the grounds, in substance, that it does not -state facts sufficient to constitute a cause of action in that the action is not instituted in the name o-f the real party in interest; that it fails to set forth conditions -authorizing the issuance of bonds of -an independent school district; that it fails to show that such preliminary proceedings have been taken in the manner of voting, offering for sale, and effecting the sale of the bonds of an independent school district; that the notice claimed to have been given of the alleged election was insufficient under -the law and fails to contain the necessary statements and requirements provided by law; and that there are no sufficient allegations to show that the alleged bonds could be legally issued and made a charge
Rut in the case at bar it will be observed that the defendant' had interposed an answer under oath as required by the Code. We are of the opinion that, notwithstanding the fact that he had filed an answer in compliance with the provisions of' the Code relating to mandamus proceedings, he still retained the right to move to quash the alternative writ on the ground that it did riot state facts sufficient to entitle the relators to a peremptory writ. We are of the opinion, also, that the action was instituted by the
The judgment of the circuit court directing the issuing of a peremptory writ is affirmed.