
    Case v. Blood et al.
    1. Statute of Limitations: amendment: same cause of action: different relief. Where an action is begun within the time prescribed by the statute, and certain relief is asked, and, after the cause would be barred by the statute, the plaintiff files an amended petition, setting up the same cause of action, but asking different relief, held that the amendment is not the beginning of a new action, but a continuance of the old one, and that the action as founded on the amended petition is not barred.
    2. Appeal: parties after reversal. Parties defendant who do not join in an appeal from a judgment against them must be presumed to be satisfied with it, and to bo dissatisfied with a reversal of it, and, after the cause is remanded, they are still parties to the action.
    3. School Directors: refusal to act: remedy. From a decision by school directors an appeal lies to the county superintendent; but, where the directors refuse to act, mandamus, and not appeal, is the remedy.
    4 School Districts: funds: interest of non-resident tax-payer. A tax-payer in a school district, though he be a non-resident, has such an interest in the funds of the district that he may maintain an action in mandamus to compel the directors to perform their lawful duty in regard to such funds.
    5. Evidence: use of recordon former trial: foundation. The record of documentary and oral evidence taken and duly preserved on a former trial is not admissible in a subsequent trial, without any showing of the absence of the witnesses, or of inability to produce the original documents, and without any notice to the adverse party. (Compare Baldwin v. St. Louis, K. & N. Ii'y Co., 68 Iowa, 37.)
    
      
      Appeal from Sioux Cvrcuit Court.
    
    Friday, June 10.
    Mandamus to compel the defendants, a part of whom are directors of the independent district of Rock, and the others directors of the district township of Rock, to appoint arbitrators to make an equitable division of the assets of the district township of Rock, held before the organization of the independent district, which covers a part of the territory of the original district township from which it was separated. A judgment was entered granting the relief sought by plaintiff. The directors of the district of Rock appeal.
    
      Bell & Palmer, for appellants.
    
      Van Wagenen <& McMillan,.for appellees.
   Beck, J.

I. The cause has been before in this court. See 68 Iowa, 486, for facts and pleadings upon which the cass was decked- Upon the remanding of the cause, plaintiff filed an amended petition presenting substantially the same facts as alleged in ^he orjginai petition. The relief asked in this amendment is that defendants be required to appoint arbitrators to make an equitable division of the assets of the district township.

II. Defendants now insist that the action was barred by the statute of limitations, which is pleaded as a defense in the answer to the amended petition filed after the cause was remanded to the circuit court. This position is based upon the claim that the amended petition presents a new cause of action which accrued within the time limited by the statute. We think this'position is not supported by the facts. The cause of action, in both the original and amended petitions, is the failure of the defendants to equitably divide the assets of the district township. The relief asked is not identical in these separate pleadings. In the original petition, plaintiff asks that the respective boards of directors be required to meet and mate a division of the assets of the district township; and, in case they fail to agree, that the court appoint arbitrators to mate such division. The amended petition prays that the respective boards of directors appoint arbitrators to mate such division, and the court appoint a time and place for the meeting of the boards for the purpose of mating snch appointment. It will not be disputed that the remedy sought is not the cause of action, and is no part of it. The cause of action, if valid, entitles the plaintiff to a remedy. In a proper case, he may change his claim for the remedy, without in any manner presenting a new cause of action. This was done by plaintiff in this case. The action after the amendment was simply a continuance of the original action, with a claim for a different remedy. It is not claimed that the cause of action was barred when the suit was originally commenced.

III. The directors of the independent district did not join in the former appeal. It is now insisted that the case as to them is ended, and that they were not before the court after the cause was remanded from this court. If they were satisfied with the first judgment, they cannot be presumed to have abandoned the cause or to have withdrawn from it when it was reversed. Indeed, they must be presumed to be dissatisfied with the reversal of the judgment, as they were satisfied with the judgment. At all events, the reversal of the judgment left all the parties in the condition they were in before the judgment was rendered. These directors did in fact appear in the case, and were therefore before the court below, as they are in this court.

.. 3. SCHOOL CUJnooractr:e£us" remedy. IY. Defendants insist that plaintiff’s remedy was by appeal to the county superintendent. But such appeal is authorized from a decision or order of the direct- • tors- Code, § 1829. In this .case the directors did not decide anything, and made no order. They simply refused or neglected to act. No appeal could be taken from their default in this regard. Plaintiff’s proper remedy is mandamus.

Y. It is urged that, as plaintiff has ceased to be a resident of the independent district, and a patron of its school, he cannot be aggrieved by the official non-feas- . anee ol the appellants. Rut he is still a tax-Payer °f the district, and as such he is injured, if fnrL¿s are withheld from it by the district township. Such funds would probably take the place of money raised by taxes. Plaintiff’s taxes, therefore, are liable to be increased by the non-action of the respective boards of directors.

VI. The circuit court, against defendant’s objection, permitted the evidence incorporated in the bill of exceptions taken upon the former trial to be read from the record, thus dispensing with the oral testimony of the witnesses and the original documents. 'This was done without any showing of the absence of the witnesses, or of plaintiff’s inability to produce the original documents, or any notice to defendants. This is clearly unauthorized by law. In Code, § 3777, it is provided that a transcript of the evidence preserved by the short-hand reporter may be admitted in evidence “with the same force and effect as depositions, and subject to the same objections, so far as applicable.” • But depositions containing the evidence of witnesses, or copies of documents, cannot be introduced in evidence without excuse for not producing the witness in court, or for not producing the original document. This point we have before ruled. Baldwin v. St. Louis, K. & N. R'y Co., 68 Iowa, 37.

Eor this error the judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Reversed.  