(concurring specially). This is an appeal from an order sustaining a demurrer to part of the answer. The complaint alleges as follows:
In the year 1922 the territory previously constituting the township of Rex was divided into two townships, now known as Rex township and Bailey township. Pursuant to the provisions of section 6039 °f the Revised 'Code of 1919, a board was appointed to adjust the settlement of assets and liabilities between the two townships. This board made and filed a report, providing, among other things, that the present Rex township should pay $1,440 and Bailey township should pay $960 of the $2,400 indebtedness of the original township. Since said report was filed, the plaintiff, Rex township, has paid the entire $-2,400 of the said indebtedness, and the plaintiff asks to recover from the defendant the sum of $960, paid on behalf of said defendant.
To this complaint the defendant interposed an answer setting forth what are denominated as two separate defenses. As a first defense, this answer admits the -division as alleged in the- complaint, the appointment of the board of adjustment, and the filing of its-*312report in the word and figures set forth in the complaint. But it alleges that, owing to a mistake on the part of said board, and owing to their inability to determine what certain items of outstanding indebtedness represented in the way of expenditures, a material and important part of the determination of said board was omitted from said report, and on that account said report does not truthfully set forth the determination of said board. As a so-called further defense the answer alleges as follows:
During the period before the division of the original Rex township, as set forth in the complaint, various sums of money were raised by taxation from the property of said original township. Said moneys were expended mostly for roads and bridges within the boundaries of the plaintiff, the present Rex township. The money so raised by taxation of all the property located in the original Rex township, and the public improvements erected and maintained therewith, have inured to the benefit of the present Rex township to a much greater extent than is equitable.
At the time is was seeking to make the adjustment between the two townships,. the adjustment board did not have access to the records, which would enable its members to determine for what purposes the outstanding indebtedness has -been incurred, or what part of the public improvements paid for thereby inured to each of the present townships.. And the written report was signed and filed with the understanding between the board members that a further provision should be written into the report, modifying it, so as to make it provide for a division of the indebtedness upon a basis of each township being charged with the work and material used within its boundaries; that by oversight and mistake this latter provision was omitted from said report as signed and filed; that the said report is therefore incomplete and incorrect, and does not in fact express the true intention of said board of adjustment, and is an inequitable and unfair adjustment of the outstanding indebtedness as it existed prior to division.
And the answer prays, in the alternative, for different forms of equitable relief, including a prayer that the court remit the report to the original board of adjustment, with instructions to fully and completely express in said report their final determination and adjustment of said township assets and liabilities. To this so-called second defense the plaintiff demurred, on the ground that *313it does not state facts sufficient to constitute a defense. From an order sustaining- this demurrer the defendant appeals.
The respondent contends that, before considering the question raised by the demurrer, this court should consider the question whether it has jurisdiction of this appeal. 'And on this point the respondent contends that we have no jurisdiction because no undertaking on appeal has been filed. Respondent’s counsel say that while this court, in Dring v. St. Lawrence Tp., 23 S. D. 624, 122 N. W. 664, holds that no undertaking is required in an appeal taken by a civil township, that case did not receive adequate consideration, and should not control in this case. The opinion in Dring v. St. Lawrence Tp., supra, was handed down nearly 20 years ago. The question of the necessity of a bond, in an appeal taken by a civil township, was squarely passed upon therein, and, since the question is one of procedure only, we think the rule of stare decisis should 'be applied, and no litigant denied the right of appeal because of having relied upon a decision which has stood unquestioned for so many years.
As to the question raised by the demurrer: The plaintiff’s suit is for the recovery of money alleged to have been paid on defendant’s behalf. Its right of recovery rests entirely upon the theory that the defendant was rendered liable for the $960 payment by virtue of a valid report of the board of adjustment. The report as filed, being presumed to be complete and correct, is undoubtedly sufficient to make a prima facie case establishing defendant’s liability; but the defendant’s answer, both in that part attacked by the demurrer and in that part not so attacked, sets up the defense that the report as filed does not truthfully set forth the actual determination of the board of adjustment.
Although the part of the answer to which the demurrer is directed begins with the words “For a further defense,” no further defense is in fact pleaded. That part of the answer simply seeks to elaborate upon the allegation that the report as filed does not set forth the actual determination of the adjusters. The rights of the parties in the matter of road and bridge expenditures have nothing to do with the merits of the demurrer. This demurrer admits that the report as filed “does not in fact express the true intention of the board of adjustment, and is also an inequitable and unfair adjustment of the outstanding indebtedness and improve-*314merits formerly erected and maintained in the said Rex township, as it existed prior to division.” Whether the adjustment for which the defendant contends would be a proper and equitable adjustment depends upon facts which are not before us, and concerning which it is useless for us to conjecture.
Among other provisions section 6039, R. C., provides: “Such board shall have power to determine and declare what portion of the bonded or other indebtedness of the original township shall be assumed and paid by each of the new townships so organized, and also to ascertain and determine what sum either of such new townships shall pay to the other on account of school buildings or other public improvements which such township may have received prior to and' retained on such division. * * * All such divisions and adjustments shall be made, as near as may be, on the basis of the assessed valuation of property in each of such townships, as determined by the assessor for the year preceding such division, and on the value of such school buildings and other property at the time of such division of such township.”
We cannot assume, upon the record now. before us, that the report which the adjustment board may make as its final determination will require the court to pass upon any conflict there may be between the terms “other public improvements” and “other property,” as used in the statute. 'Nor are we to presume that the board, if allowed to amend this report, will fail to act in accordance with law. The relevant fact, pleaded in the answer and admitted by the demurrer, is that the report filed is not a complete or correct report of the determination of the board, and that the paper was signed with the understanding that further information should be secured and a different adjustment of the debts provided for.
Plaintiff’s case depends upon the theory that the report as filed is valid) and binding. It can not be binding, if the facts are as the demurrer admits. If the plaintiff is to recover what it voluntarily paid on behalf of the defendant, the burden is upon the plaintiff the show that the adjustment made legally binds the defendant to pajr $960. The defendant is not the adjustment board; it is no part of defendant’s duty to see that the report is valid.
W'e are not dealing with a motion to strike matter from the answer, nor was the trial court dealing with any such motion. The questions raised by such motion would be materially different from those raised by the demurrer.
*315For the foregoing reasons, I concur in the result arrived at in the opinion of P'OLLEY, J.