[DOWNLOAD] "Freeholders Petition Hinze. Nora Hinze Et" by Supreme Court of Nebraska * Book PDF Kindle ePub Free

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• Title: Freeholders Petition Hinze. Nora Hinze Et
• Author : Supreme Court of Nebraska
• Release Date : January 16, 1965
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

Description

The district court detached petitioners' land from School District No. 34 of York County and attached it to School District of York. School District No. 34 has appealed to this court, and the question presented is whether petitioners have complied with the provisions of section 79-403, R. S. Supp., 1961, which was applicable at the time of the application for transfer on June 12, 1962 (Laws 1961, c. 397, § 1, p. 1207). A preliminary question is presented by appellees as to the right of School District No. 34 to appeal. We have previously overruled a motion to dismiss this appeal, but the question is presented in the briefs and requires a Disposition in this court. It is firmly established law of this state that a school district, although a body corporate under the statutes of the state, may not maintain an action involving a change in boundaries of the school district, and has no legal interest in maintaining the boundaries of the district. The district has no territorial integrity and the change or alteration in the boundaries must originate with the legal voters thereof under the appropriate statutory procedure. Cowles v. School District, 23 Neb. 655, 37 N. W. 493; Halstead v. Rozmiarek, 167 Neb. 652, 94 N.W.2d 37; Board of Education v. Winne, 177 Neb. 431, 129 N.W.2d 255. But, the objection was not asserted in district court at any time and for the first time was raised here on appeal. The district court clearly had jurisdiction of the subject matter of the action under the statute and holdings of this court. See McDonald v. Rentfrow, 176 Neb. 796, 127 N.W.2d 480. It is clear that what we have here is a want of legal capacity to sue or to appeal, and want of legal capacity to sue is waived unless raised by demurrer or answer. Kuncl v. Kuncl, 99 Neb. 390, 156 N. W. 772; Gentry v. Bearss, 82 Neb. 787, 118 N. W. 1077. See, also, 39 Am. Jur., Parties, § 106, p. 979. And, it is fundamental that the grounds for the assertion of error on appeal must be presented and ruled on by the trial court. It is our Conclusion, notwithstanding the rule that a school district may not maintain an action or appeal involving the change of boundaries of a school district, that where objection is not made in the district court to its incapacity, its incapacity is waived and may not be raised for the first time on appeal to this court. Consequently, the case is before us here on the merits.

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