Opinion
October 8, 1959 —
November 3, 1959.
APPEAL from an order of the circuit court for Juneau county: BRUCE F. BEILFUSS, Circuit Judge. Reversed.
For the appellants there were briefs by C. E. Macomber of New Lisbon, and Lehner Lehner of Princeton, and oral argument by Mr. Philip Lehner, Sr., and Mr. Macomber.
For the respondents there was a brief by Curran Curran of Mauston, joined in by William J. Gleiss, district attorney of Monroe county, for the Monroe County School Committee, and Roland W. Veith, district attorney of Juneau county, for the Juneau County School Committee, and oral argument by Mr. Charles P. Curran and Mr. Veith.
The joint County School Committee of Juneau and Monroe counties made an order dissolving School District No. 2, town of Germantown, Juneau county, and attaching and consolidating it to joint School District No. 1, city of New Lisbon, village of Hustler, town of Fountain, and parts of the towns of Clearfield, Lisbon, and Orange, Juneau county, and parts of the towns of Clifton and Oakdale, Monroe county. The order was dated April 29, 1958, and the effective date was July 1, 1958.
An appeal from this order, as authorized in sec. 40.03(5), Stats., to the circuit court for Juneau county, was taken by taxpayers and petitioners, and alleged among other things that they were aggrieved by the order; that the order is void and has no legal effect; that the proceedings upon which said order is based are not in compliance with provisions of the law; that their petition was rejected by the committee; that the committee acted illegally, exceeded its powers, and acted arbitrarily without regard to the rights of the electors and property owners of the district.
The answer of the Joint County School Committee of Juneau and Monroe counties sets forth that all the qualifications and requirements of the statute had been met.
The matter appeared in the printed calendar for the fall term of court in Juneau county. Pursuant to prior notice a pretrial conference was had. A stipulation was entered into by the taxpayers, petitioners, and the joint County School Committee of Juneau and Monroe counties on October 13, 1958. The pertinent parts of the stipulation are that the joint School Committee had committed jurisdictional errors; that an additional hearing be had; that the original order dated April 29, 1958, be null, void, and have no legal effect, and further that a new hearing be held to dissolve joint School District No. 2, town of Germantown, as provided in the order, and then to attach certain parts of a described territory to joint School District No. 1, city of New Lisbon and the other portion to Joint School District No. 1, city of Mauston.
On October 16, 1958, counsel for the intervening petitioners and taxpayers, contacted the court by telephone and advised the court that they wished at this time to intervene and sought to be heard.
The court, in a later telephone call on the same day, advised counsel that the stipulation and proposed order had been presented to him by the only parties of record and that it was the court's opinion that the order should be signed, but that the court would hear an application to intervene if his clients presented such application.
The order was signed on October 16, 1958, and provided that the stipulation and provisions thereof are approved, that jurisdictional defects occurred in the proceedings of the Juneau County School Committee and Monroe County School Committee in said matter, and that the order entered by the said Juneau and Monroe County School Committees dated April 29, 1958, is set aside and declared to be null, void, and of no legal effect.
The New Lisbon School District and seven residents of either the New Lisbon or Germantown districts by petition and order to show cause dated November 1, 1958, by their counsel, sought an order vacating and setting aside the order of October 16, 1958, and for a further order directing that these petitioners be made party defendants for an answer and hearing on their behalf. The court denied the motion to intervene.
The only issue before this court is whether the order denying the petition to vacate the judgment and right to intervene should be reversed. The order of the joint County School Committee of Monroe and Juneau counties of April 29, 1958, was based upon a petition filed by the intervenors and taxpayers and hearing held. The pleadings before the trial court presented all of the issues and the intervenors and taxpayers had a right to rely upon the answer filed by the joint County School Committee.
The stipulation changed the status of the taxpayers and intervening petitioners and their application for intervention having been timely made, the denial by the trial court to permit them to intervene upon the facts of this case constituted an abuse of discretion.
See State ex rel. Oelke v. Doepke (1952), 260 Wis. 493, 51 N.W.2d 10; Joint School Dist. v. Waupaca, etc., County S. Comm. (1955), 271 Wis. 100, 72 N.W.2d 909; and Joint School Dist. v. Sosalla (1958), 3 Wis.2d 410, 88 N.W.2d 357.
By the Court. — Order reversed, with instructions to vacate the judgment and permit the petitioners to intervene.