(dissenting). I am not able to agree with the majority of the court in this case. The petition was sufficient in all respects to give the court jurisdiction. It was filed in the clerk’s office on the 18th day of April, 1927, and on that day the court made an order fixing the 10th day of May as the day of the hearing and directing the publication of notice of such hearing as required by the statute. The St. Lawrence school district entered a general appearance and answered to the merits as defendant in the case on the 10th day of May; on the 4th. day of May entered into a stipulation with counsel for the petitioners, who will be referred to hereafter as plaintiffs, stipulating that hearing might be postponed to the 24th day of May, and! the court made an order to that effect. On the 24th day of May, upon a similar stipulation, the court made an order that the hearing be had on the 3d day of June, and on said day the court proceeded to hear the matter. Plaintiffs put in their evidence and rested.
Defendant then moved the court to dismiss the petition upon the ground that the same did not contain the names of a majority of real estate owners and electors combined of the proposed common school district, and for the further reason that such a number of the petitioners had withdrawn their names from the petition as to leave the petition without a sufficient number of signers, and for that reason the court had lost jurisdiction of the case. This motion was taken under advisement by the court, and the defendant proceeded with its case. It offered, and the court, over proper objection, admitted in evidence, what purported to' be a petition *293signed by a certain number of the signers on the original petition wherein they asked to withdraw their names from 'such original petition. This petition of withdrawal, if filed at all, was not filed with the clerk until the commencement of the trial.
If the withdrawal petition were properly received in evidence, its effect was to reduce the number of petitioners to less than a majority of the electors and real property owners in the proposed common school district, and deprived the trial court of jurisdiction to do anything 'further in the case except to enter an order dismissing the case. But, instead of dismissing the case, the trial court, after having- so deprived itself of jurisdiction, proceeded to try the case on the merits and entered judgment disposing of all the issues involved.
It is contended by the defendant that the signers of the withdrawal petition -had a right to withdraw at the time they did, and in support of such contention cite and rely upon State ex rel. Andrews v. Boyden, 21 S. D. 6, 108 N. W. 897, 15. Ann. Cas. 1122. But that case is not controlling nor is it analogous to this. That was a case wherein a petition signed by a majority of the electors of a county asking for the submission of a change of the county seat had been filed with the board of county commissioners. At or before the time the petition was filed, a second petition signed by a majority of the voters, including a considerable number who- had signed the first petition, asked for a change of the county seat to a place different from that named' in the first petition. The question then became, which of the two petitions would the board act upon, and the court said that the board, not having made a final order upon the first petition before the second one was filed, was at liberty to act upon the second. In this case the court had acted upon the petition and entered at least three orders before the withdrawal petition was signed, and it is the contention of the plaintiffs that, after jurisdiction had been conferred upon the court, and the court had acted upon the petition by making the order fixing a time for a hearing and two orders of postponement thereafter, it could not be deprived of jurisdiction by the filing of the second petition. In State ex rel. Morgan v. Nemaha County, 10 Neb. 32, 4 N. W. 373, it was held that petitioners on a petition for the removal of a county seat might withdraw their names at any time before it is presented to the county commissioners, but that, after *294the petition had ¡been acted upon, it was too late to- withdraw, citing Crume v. Wilson et al., 104 Ind. 583, 4 N. E. 169. Where a petition conferring jurisdiction on the court has been filed, the court cannot thereafter be deprived of jurisdiction by the 'withdrawal of a part of the petitioners. State ex rel. Beebe v. Wilkins, 67 N. H. 164, 29 A. 693, and cases cited. When the parties who signed the withdrawal petition signed the original petition, they invoked the jurisdiction of the court, and, after having set the machinery of the court in motion, should not then Ibe permitted to deprive the court of jurisdiction by their attempted withdrawal. Huntley v. Younginger, 53 S. D. 195, 220 N. W. 530. The trial court clearly erred in receiving the withdrawal petition.
During the trial, over proper objection by plaintiffs, the trial court admitted' in evidence the judgment rolls in two other cases involving the division of the St. Lawrence independent school district, and upon such evidence made the following conclusion of law: “The issues presented in such petition have already been adjudicated in two previous actions before this court, and the issues herein presented are now res adjudicata.”
This 'Conclusion is not warranted by any evidence or finding of fact in the record, because it appears from' the finding of fact, and is conceded by the defendant, that the division of territory in the former cases was not the same as it is in this, and that the issues involved are not identical. Before the adjudication of a former action can be used as a bar to a succeeding action, the existence of four separate elements must be shown. These elements are: “(1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and the parties to the action; (4) identity of the quality in the person for or against whom the claim is made.” 4 Words and Phrases, Second -Series, page 300. In this case there is not an identity in the thing sued for, because the territorial division involved in the two former actions was not the same as that in the present action, and for that reason the causes of action in the different cases are not the same. Neither was it shown, or attempted to be shown, that the persons in the different actions were identical. Therefore, the doctine of res adjudicata does not apply.
The disposition of the two branches of the case by the trial court are wholly inconsistent with each other. If the withdrawal *295petition was properly received in evidence, then the court was instantly deprived of jurisdiction to take any further steps in the case, except to dismiss it. On the other hand, if the court retained jurisdiction, then the disposition of the second branch of the case is not warranted by the evidence because of the lack of identity of persons and causes of action involved in the former cases.
The judgment appealed from should !be reversed and the case remanded to the trial court to proceed in conformity with the former decisions of this court on the same subject.