State ex rel. Rakow v. Allen

Barnes, J. Action in mandamus to compel the defendants to move [827] the schoolhouse in district No. 31, Dixon county, Nebraska, to its former site. A trial in the district court resulted in findings and a judgment for the relators, and the defendants have appealed. It appears that at the annual school district meeting held in school district No. 31, in the year 1910, there Avas submitted to the voters there assembled the question of moving the schoolhouse from its present site to one alleged to be nearer the center of the district. A vote on that question was taken, and resulted in 14 for and 10 against removal. According to the provisions of section 11537, Ann. St. 1911, the motion was declared lost. It further appears that within a few days thereafter E. H. Allen, H. B. Carr, two members of the school board, together with certain other persons, proceeded to remove the schoolhouse to another site. Thereupon this action was commenced to require the defendants Allen, Carr and others to replace the schoolhouse in its former position. Issues were joined, and the cause was tried to the court, who made certain general and special findings of the facts, and awarded the plaintiffs the writ of mandamus prayed for, restoring the schoolhouse in question to its former site. The appellants contend that, the court having failed to find that there was a demand made upon the respondents to restore the schoolhouse to its former location, the judgment of the district court should be reversed. In Lynch v. Egan, 67 Neb. 541, it was said: “In a suit in equity, Avhere the court makes special findings, and omits therefrom some fact, conclusively established by the evidence essential to the decree, such fact, on appeal to this court, Avill be treated as though found by the court.” It appears that respondent Allen told R. H. Cross, his fellow school district director, that he could not replace the schoolhouse on its former site. And Allen testified' himself that he was present and hired Mr. Reed to move the schoolhouse from its former location; that he at that time was acting as a director of the school district. We therefore conclude that there was sufficient evidence to [828] sustain a finding of the refusal of the respondents to replace the schoolhouse in its former position. As we view the record, it contains no reversible error, and the judgment of the district court is Affirmed. Rose, Sedgwick and Hamer, JJ., not sitting.