Opinion
Rehearing Denied July 7, 1960.
Page 810
Mac L. Bennett, Jr., Normangee, for appellants.
J. C. Hinsley, Austin, for appellee.
McDONALD, Chief Justice.
This is an appeal from a summary judgment rendered by the District Court of Leon County, enjoining defendants appellants) from detaching certain territory from the Leon Independent School District, and attaching same to the Normangee Independent School District. This cae involves the identical parties and subject matter involved in County Board of School Trustees of Leon County et al. v. Leon Independent School District, Tex.Civ.App., 328 S.W.2d 928 (no writ history), and is a continuation of that case. In that case, this court held on appeal from a temporary injunction, that where an independent school district comprised territory in Leon and Robertson Counties (the Leon Independent School District), and the County School Board of Leon County sought to transfer certain territory from the district which lay wholly in Leon County, to a district lying partly in Leon and partly in Madison Counties, that the order of transfer is invalid without the concurrence of the County Trustees of both Madison and Robertson Counties.
There was no application for a writ of error to the Supreme Court in the foregoing cause; such judgment became final; and this court returned its mandate to the District Court of Leon County. Thereafter, defendant (appellant) Normangee Independent School District, filed an amended answer setting up the fact that the County Board of School Trustees of Madison County had entered an order ratifying and confirming the transfer of the territory.
Plaintiff (appellee) Leon Independent School District filed motion for summary judgment, setting up the fact that the Court of Civil Appels in the 328 S.W.2d case, supra, had held the order of the Leon County School Board transferring the territory, void, unless concurred in by both the Madison and Robertson County School Board; and that the record failed to disclose concurrence by the Robertson County School Board.
The trial court granted the motion for summary judgment.
Defendant (appellant), Normangee Independent School District, appeals, contending:
1) The trial court erred in granting summary judgment because fact questions are raised.
2) The trial court erred in considering evidence heard upon the hearing of the temporary injunction and in granting summary judgment thereon.
3) The trial court erred in considering the findings of fact adduced upon a hearing on he temporary injunction, in granting summary judgment.
This court held in County Board of School Trustees of Leon County et al. v. Leon Independent School District, 328 S.W.2d 928, supra, that before the Leon County School Board's order be valid, transferring territory from the Leon Independent School District (which is located partly in Leon County and partly in Robertson County), into the Normangee Independent School District (which is located partly in Leon County and partly in Madison County), that the concurrence of the County School Boards in both Madison and Robertson Counties was necessary. The record before us reflects that the Madison County School Board has concurred but does not reflect that the Robertson County School Board has concurred. Under such record, and under the law of the case as announced in 328 S.W.2d, supra, no genuine issues of material fact were raised and the trial court properly rendered summary judgment for the plaintiff (appellee).
Under our view of the case, defendant's (appellant's) points 2 and 3 become immaterial.
All of defendant's (appellant's) points are overruled and the judgment of the trial court is
Affirmed.