State, Ex Rel. v. Whetsel, Trustee , 197 Ind. 278 ( 1925 )

ON PETITION FOR REHEARING. This court did not hold that a motion for a venire de novo was necessary to bring up for review the failure and refusal of the trial court to find in relator's favor facts of which he had the burden of proof. It held that there was evidence from which the court could lawfully make the finding that it did. The silence of the special finding as to whether relator's children resided in school district No. 2, and whether the defendant trustee had township funds available to pay the cost of transportation had the same effect as an express finding that they did not reside therein and that he had no such funds, relator having the burden of proof as to those facts. See authorities cited in the original opinion.

Counsel call attention to the fact that Mr. Philabaum, the township trustee who was in office when the school in district No. 2 was abandoned, to whom relator stated that if his children went to that school, he must get his wagon and take them down over that mud road and bring them home, testified that he enumerated relator's children in district No. 2, but that he never enumerated them in that district at relator's request. As modified by the inclusion of this fact, the evidence set out in the original opinion supports the finding that relator's children did not reside in the abandoned school district No. 2, implied from such failure of the special finding to state that they did reside there, and that finding is also supported by further evidence as follows: That the two children whom relator sought to have hauled to school were aged twelve years and seven years, respectively; that the school in district No. 2 had been abandoned seven years before; that none of relator's children were attending school at No. 2 when the district was abandoned, nor at any time; that relator never asked the trustee who was in office when the school at No. 2 was abandoned to haul his children to school, though that trustee employed a man to haul the children from district No. 2 to the school in No. 1, who did not haul relator's children, and that while relator's children had always attended school in district No. 1, no trustee had ever hauled them to school; that the school wagon which hauls other children from district No. 2 over to the school in No. 1 passes along a road one mile from relator's residence. And it was also testified that two of relator's children are attending the school at Pennville and go right past the school house at No. 1 on their way to school.

The question for decision in the trial court was one of fact, to determine in which school district the residence of relator was at the time the school was abandoned, where his 5. children were born and where they grew to school age. It was not at all a question of what district the children or their father elected to claim as his or their residence when they had reached the age of six or more years. The law fixed the father's residence in the school district in which he or his predecessors in the occupation of his home elected to send children from that home to school, subject to be changed with the joint consent of the school patron and the township trustee. And there was evidence from which the trial court had a right to find, as it did find by omitting to state anything to the contrary in its special finding, that for many years the relator had lived in district No. 1 where he had sent his children to the school during all that time, and that his children were living with him in that district when the school in district No. 2 was abandoned.

Counsel insist that "there was $1,200 available for the purpose of transporting children in Knox township." But the township trustee, Preston Whetsel, testified as follows: That the 6. school township owned a school wagon, with which children were hauled to the school in district No. 1 along the road one mile north of relator's residence; that the township advisory board appropriated the money and the trustee hired a man to drive the wagon; that the man received $3 per day in the forepart of the winter, and $3.25 from January on; that the expense of operating this wagon for the school season runs about $520 for the current year; that not more than $570 was appropriated by the advisory board this year to pay for transporting children; that, after payment of the man so employed, only $30 or $40 of the fund so appropriated will remain; that the estimated expense of hauling children to school in the township for the next year is something like $585.85, and that the township advisory board made up a budget and levied taxes in that amount for said purpose, but none of the taxes so levied has been collected or is available in the current year; and that there are no funds appropriated by the advisory board out of which to employ some one to transport relator's children to school. This evidence supports the finding that relator failed affirmatively to prove that the trustee had sufficient funds available with which to pay for transporting relator's children to school. And this was not a suit against the advisory board to control its action, neither the board nor any of its members being parties.

Counsel for relator suggest that a recital of evidence in his original brief that $1,200 of the special school fund was appropriated for "miscellaneous expenses," and that the 7. cost of transporting pupils was payable from the amount so appropriated, made it the duty of the Supreme Court to proceed on the assumption that $1,200 was available for the transportation of pupils, since appellee did not suggest the contrary. But appellant's brief also set out much of the evidence given by the township trustee, above referred to. And it is not only the right but the duty of this court to search the record for facts on which to affirm a judgment, in case, by any means, it shall learn that appellant's brief falls short of stating fully and accurately all matters that are pertinent to a correct determination of the appeal. Martin v. Martin (1881),74 Ind. 207, 210; Travelers Ins. Co. v. Prairie School Tp. (1898),151 Ind. 36, 41, 51 N.E. 100; Kraus v. Lehman (1908),170 Ind. 408, 414, 415, 83 N.E. 714, 15 Ann. Cas. 849.

Relator, having the burden of proof, cannot be said to have established either of the alleged facts that the township trustee had funds available, or that relator and his children resided in school district No. 2, by such clear and uncontradicted evidence as to justify a reversal of the finding by the trial court to the contrary.

The petition for a rehearing is overruled.