(concurring specially). I concur in the reversal of this case for a trial on the merits, for the reason stated in the majority opinion that the petition states facts sufficient to constitute a cause of action to try title of the parties to the school board offices.
It appears the trial court sustained the motion to dismiss on the theory the action was brought by the plaintiffs in some sort of representative capacity for the benefit of the school district and was therefore not brought in the name of the real party in interest. The first sentence of the majority opinion recognizes that the action is being maintained by the plaintiffs in their individual capacity. Later, in the announced opinion, the language used might give rise to the inference that the suit was being maintained by the plaintiffs in a representative capacity as members of the board of education of the school district. Under the provisions of 70 O. S. 1951 §4-5, every school district is a body corporate and may sue and be sued in such capacity under the particular name and number of the district, which in the case at bar would be “Independent School District No. 20, of Osage County, Oklahoma.” If the suit is by the district or for the benefit of the district it should be brought in that manner. No authorities are cited, showing any power in the individual members of the board of education to bring suit in their representative capacity, either for themselves or for the school district. This court, in Gilles v. Page Estate, 154 Okla. 230, 7 P. 2d 490, in accordance with the general rule announced in 67 C. J. S. p. 1097, held that the statement of representative capacity, following the names of the plaintiffs in the caption, under similiar circumstances, should be treated, as descriptio personae. I think we should clearly hold the action is by plaintiffs in their individual capacity for the guidance of the trial court in the further disposition of the case.
The petition alleges that the plaintiffs are the duly qualified members of the board of education of such school district and as such members are entitled to discharge the functions of such offices, but it also alleges that the defendants have possession of the property belonging to the school district and are claiming to be members of such board of education and are engaged in discharging the functions of such offices. It must be conceded the defendants are acting under alleged appointments and apparently with judicial sanction in a case to which the plaintiffs were not parties. I think, therefore, the opinion should recognize and note the fact that the defendants are occupying the offices and discharging the functions thereof, so that there may be no possibility of confusion in regard to the management of the school finances or affairs, pending the disposition of this case, or thereafter in the event final judgment should be for the plaintiffs, holding that they have title to the offices.