*764On petition for rehearing.
Per Curiam.Respondent has petitioned for a rehearing. In such petition it is asserted that this court in its former opinion in this cause “apparently overlooked the fact that no question of jurisdiction was ever raised or presented in the trial of the case in -the court below,” and it is contended that such question cannot be raised for the first time in this court. The rule that the theory adopted in the trial court will be adhered to on appeal; and, hence, that a party may not urge on appeal, any error growing out of the trial or submission of the cause upon an incorrect theory, when such theory was of his own selection or was adopted by the trial court at his request has been affirmed by this court in many decisions. See Vannett v. Reilly-Herz Auto. Co. 42 N. D. 607, 173 N. W. 466; Minneapolis, St. P. & S. Ste. M. R. Co. v. Stutsman, 31 N. D. 597, 154 N. W. 654; Malherek v. Fargo, 49 N. D. 522, 191 N. W. 951; Brissman v. Thistlethwaite, 49 N. D. 417, 192 N. W. 85. The rule stated above, however, does not go to the extent of precluding a party from asserting that the lower court had no jurisdiction of the subject-matter of the controversy; or from asserting that, the petition or complaint of the party seeking judicial relief fails to show that he is entitled to any such relief at all. Comp. Laws 1913, § 7447. See also Street Grading Dist. v. Hagadorn, 108 C. C. A. 429, 186 Fed. 451; Huntington County v. Beaver, 156 Ind. 450, 60 N. E. 150; Smith v. Apple, 264 U. S. 274, 68 L. ed. 678, 44 Sup. Ct. Rep. 311. In his petition for rehearing, respondent assumes that the question involved is merely one of propriety of remedy. This is incorrect. There is another question which lies much deeper than that, namely, whether upon the record as it stood at the time the matter was submitted to the district court, a case was presented which justified that court in granting any judicial relief whatsoever to the petitioner.
As was said in Baker v. Lenhart, ante, 30, 195 N. W. 25:
“A proceeding for the exclusion of territory must be initiated by petition presented to the city council (or commission). That body and that body alone is vested with authority to receive and act upon such petition. In other words, the city council (or commission) is vested with power to hear evidence and draw conclusions therefrom: In making its determination the council (or commission) exercises powers *765judicial in their nature (Glaspell v. Jamestown, 11 N. D. 86, 88, 88 N. W. 1023; Mogaard v. Garrison, 47 N. D. 468, 182 N. W. 760), and it cannot be compelled by mandamus to decide the application in any particular way (Mogaard v. Garrison, supra).
“Manifestly a city commission has power to deny as well as to grant a petition for the exclusion of territory. The power to entertain and hear a petition necessarily implies the power to deny it. It is true, the statute says that when certain facts exist the territory shall be excluded, but it vests the city commission, and it alone, with authority to ascertain whether the facts exist. In a sense there is a duty incumbent upon all boards and tribunals to decide a controversy only one way in all cases where the evidence is such' that reasonable men can draw only one conclusion therefrom. That duty rests not only upon boards, but upon courts. Thus if the evidence in a case is such that reasonable men in the exercise of reason and judgment can draw only one conclusion therefrom, it is the duty of the court in which the case is tried to decide the case in favor of the party who, the law says, is entitled to prevail. That is true whether the case is or is not submitted to a jury. If such case is submitted to the jury under proper instructions, it is the manifest duty of the jury to return a verdict in favor of the party who, under the undisputed evidence, is entitled to it; if the case is decided by the trial judge without a jury, the same duty rests upon him; yet it will hardly be asserted that the failure of the jury or the trial judge to perform their duty in such cases constitutes an excess of jurisdiction. All will agree that it will constitute only an error of judgment. And error of judgment on the part of the tribunal authorized to hear and determine is neither want nor excess of jurisdiction. Hauser v. State, 33 Wis. 678; Arnold v. Booth, 14 Wis. 180; Patterson Land Co. v. Lynn, 44 N. D. 251, 175 N. W. 212. See also Ex parte Bigelow, 113 U. S. 328, 331, 28 L. ed. 1005, 1006, 5 Sup. Ct. Rep. 542. . . .
“The subject-matter here, viz., the exclusion of territory from a city, is one fundamentally legislative in character (Glaspell v. Jamestown, 11 N. D. 86, 88 N. W. 1023), and the Legislature has said that all applications for the exclusion of territory must be addressed to and determined by the city council (or commission) of the city from which the territory is sought to be excluded, and it has vested no other body *766or tribunal with power to review its determination on such application.”
This language is equally applicable here. In this case an application was made to the city council to have certain property detached from the city. The city council refused to pass an ordinance detaching the property. When the matter was presented to the district court the question presented to that court (wholly aside from any question as to the propriety of the remedy) was whether the petition set forth any facts warranting interference by the court. In view of the ruling announced in Baker v. Lenliart, supra, it is manifest that this question should have been answered in the negative. The district court, however, answered the question in the affirmative. It, in effect, determined the application which the statute said must be determined by the city council, and entered a judgment, commanding the city commission to pass an ordinance detaching the property.
Tie adhere to the former opinion.
Rehearing denied.
On rustían son, Johnson, Btedzislb, and Nuesshe, JJ., concur.