(dissenting). A proceeding under the statute to annex territory to a school district is not an adversary one, but it may become such by any interested person appearing and making himself a party on permission of the court. The school district whose territory is about to be invaded may, perhaps, be made a party for the purpose of remonstrating against the change, but it is, I think, a mistake to say thatfcsuch district becomes a party ipso facto, upon the institution of the proceedings. The statute is not mandatory, and in order to reach a conclusion as to the propriety of annexing the territory, the court may and should, when so requested, allow interested property owners, or perhaps the inyáded school district, to be made parties. School District No. 45 v. School District No. 8, 119 Ark. 149; Rural Special School District No. 17 v. Special School District No. 56, 123 Ark. 570.
The statute provides that territory may be annexed “when a majority of the legal voters of said territory and the board of directors of said single district shall ask by petition that the same shall be done.” Kirby’s Digest, sec. 7695. There is no statutory provision whatever for parties defendant, and the proceeding is in no sense a contest between two school districts. If it had been so intended, provision would have been made for notice, as in all other adversary proceedings.
No one is, therefore, aggrieved by the judgment unless it be one who has actually been made a party to the record. The cases relied on by appellees and cited in the opinion of the majority fully sustain that proposition. There is no analogy, I think, between the duties of school directors and of a county judge in regard to appeals. This court, held that a county judge could appeal from a judgment of a circuit court rendered on an appeal from the county court, for the reason that the statute provides that when appeals are prosecuted in the circuit court from orders of a county court, “the judge of the county court shall defend the same” (Kirby’s Digest, section 1493), which was construed as making the county court a party to all appeals to the circuit court from its orders. There is no such provision as to the duties of school directors. They act for the district when sued, but the district is not sutd when the electors of part of its territory petition the county court to be annexed to an adjoining single school district, for the county court acts, pursuant to its statutory authority over the school system of the county, upon the petition of the electors, and not in adjustment of a controversy between two districts.
My view of the matter is that the circuit court was correct in dismissing the appeal for the reason that School District No. 44, not having been made a party to the proceeding, was not aggrieved by the judgment of the county court within the meaning of the statute.