After the foregoing opinion was filed, the respondents petitioned this court for a rehearing and for a remand *Page 582 of the cause to the district court for the taking of further testimony. Petitioners do not challenge the legal conclusion reached in the original opinion, but base their application wholly upon the proposition that the circumstances in fact are such that to grant the relief as prayed for in the appellants' complaint will work manifest injustice. They contend that in fact the plaintiffs and appellants are estopped by acquiescence from taking exception to the regularity of the proceedings had with reference to the establishment and erection of the joint district high school; that the proceedings attacked were had in June 1924; that plaintiffs and appellants then knew and at all times since have known just what was done and what was contemplated; that, notwithstanding, plaintiffs permitted the various school districts to proceed to establish the joint district high school to incur indebtedness, to levy taxes, to employ teachers, to proceed with the moving and erection of buildings, and to enter into other undertakings in connection with the project, and made no attempt to voice their objections until February, 1925, after all of these things had been done; that to grant the relief prayed for by the plaintiffs will work injustice to the various participating districts and their inhabitants. On the other hand, the plaintiffs insist that estoppel, or the facts upon which an estoppel might be founded, were not pleaded; that the only questions raised and considered in the district court where the two questions of law which were disposed of in the original opinion; that those were the only questions raised and argued in this court on appeal, and that therefore this court cannot now properly remand the case for the taking of further testimony.
It seems to us that in view of the pleadings in the case and the issues as made thereby and considered and determined by the trial court, that it is not now possible to remand the cause for the taking of further testimony. We do think, however, that the judgment to be finally entered herein should be without prejudice to the right of the defendants to have litigated and determined on its merits in an appropriate proceeding the question of estoppel now sought to be raised. See State ex rel. Walker v. McLean County, 11 N.D. 356, 92 N.W. 385, and cases cited; Greenfield School Dist. v. Hannaford Special School Dist. 20 N.D. 393, 127 N.W. 499, and authorities cited.
Accordingly, the judgment appealed from will be reversed and the cause remanded with directions to the district court to enter judgment *Page 583 adjudging the proceedings complained of to be void, but denying the plaintiffs any other affirmative relief.
CHRISTIANSON, Ch. J., and BIRDZELL, BURKE, and JOHNSON, JJ., concur.