Opinion
File No. 7352.
Opinion filed November 1, 1932.
1. Schools and School Districts.
Statute relating to formation of school district from independent district vests broad power in trial judge, and decisions thereunder rest within his sound discretion (Laws 1923, c. 175).
2. Appeal and Error.
As regards appeal, decision dismissing petition seeking formation of common school district out of portion of independent district held "order," not "judgment" (Laws 1923, c. 175).
Decision was "order," as distinguished from "judgment," since Laws 1923, c. 175, § 1, governing the proceeding in question, provides that the court shall have full authority by "order" to fix and determine and shall by "order," etc., thus itself indicating the final determination of a proceeding thereunder as an "order."
Note: As to creation, regulation and control of school districts, see annotation in 70 A.L.R. 1062; 24 R.C.L. 562 et seq.; R.C.L. Perm. Supp. p. 5467; R.C.L. Pocket Part, title "Schools," § 6.
Appeal from Circuit Court, Faulk County; HON. J.H. BOTTUM, Judge.
In the matter of the application for the formation and organization of a common school district of territory embraced within Onaka Independent School District in Faulk County. Petition by Leo F. Nold and others against the Onaka Independent School District and others. From an order dismissing the petition, petitioners appeal. Affirmed.
Tait Morgan, of Gettysburg, for Appellants.
Jacobs Bottum, of Faulkton, for Respondents.
This appeal is from an order of the circuit court of Faulk county dismissing a petition asking a division of Onaka independent school district and the formation of a common school district out of a portion of said independent district, which petition was filed pursuant to the provisions of chapter 175, Laws 1923.
As has been heretofore pointed out by this court, the statute in question vests a broad power in the trial judge. "There can be no precise rule by which to determine what considerations should control the final judgment, but each case must rest upon its own facts and the sound discretion of the trial court." Wentz et al v. Bowdle Ind. Sch. Dist. (1931) 58 S.D. 538, 237 N.W. 763, 764.
To set out in detail the evidence offered in support of and in opposition to the petition in the instant case would not be particularly helpful. A majority of the judges are of the opinion that the record before us fails to show that the trial judge, in refusing to grant the prayer of the petition, abused a sound discretion.
This case was discussed among the judges, and the above portion of this opinion written prior to our consideration of the cases of Badger State Bank v. Weiss, 60 S.D. 484, 245 N.W. 41, and Schurman v. Schurman et al, 60 S.D. 489, 245 N.W. 39, this day handed down. After a consideration of these last two cases, it becomes apparent that the so-called "findings of fact" and "conclusions of law" have no place in this proceeding. The final determination made by the trial court in this proceeding is not a judgment, but is plainly nothing other than an order, and an appeal therefrom should be governed by the laws and rules relating to appeals from orders rather than those relating to appeals from judgments. That this determination of the court is an order, as distinguished from a judgment, is further apparent from the statute. The statute provides: "The court shall have full authority, by order, to fix and determine and shall by order," etc. Section 1. Thus the statute itself designates the final determination of this matter as an order. In addition to this, we are of the opinion that the nature of the proceeding is such that the final determination thereof, under the provisions of our law, would not result in a judgment. See Badger State Bank v. Weiss, supra.
The case having first been considered on its merits and the same result reached that would be reached should we dispose of the case on the procedural question, we deem it advisable to hand the opinion down in its present form.
The order appealed from is affirmed.
CAMPBELL, P.J., and POLLEY, ROBERTS, WARREN, and RUDOLPH, JJ., concur.