'The opinion of the court was delivered by
Valentine, J.:This is a strange case, and the proceedings therein are exceedingly tangled. It is claimed by defendants in error, who were plaintiffs below, that the action was intended to be brought under the act providing for contesting county-seat and other elections, (Laws of 1871, page 190, et seq.) Now this may be so; and, for the purpose of this case, we shall assume that it is so; but still, no such action as is provided for in that act was ever prosecuted to final judgment in this case. If, in fact, the plaintiffs below commenced this action under said act, (and whether they did or not, or whether they could do so, we do not now choose to decide,) then they evidently abandoned their original cause of action long before any trial was had in the case, and prosecuted a new supposed cause of action, by filing a new and supplemental petition, setting forth therein a new supposed cause of action, making new parties defendant, asking for other relief than that asked for in the original petition, and asking for such relief as they could not have obtained under said act for contesting elections; and they prosecuted this new supposed cause of action to final judgment, and obtained judgment on such new supposed cause of action, and on it alone. And all this was done over and against the objections and .exceptions of plaintiffs in error, defendants below. Said judgment, and the only judgment rendered in the case, reads as follows:
“Thereupon it is considered and adjudged by the court here, that the preliminary injunctions heretofore granted in this action be and the same are hereby made perpetual; and the board of county commissioners are forever enjoined and restrained from levying any tax fop the payment of any interest on said bonds, or the principal thereof; and the county clerk is forever enjoined and restrained from placing any *91such tax on the tax-roll of said county. And it appearing that the said William Hammon, director, died during the pendency of this action, and that the board of county commissioners and the county clerk are necessary but only nominal parties, having no pecuniary interest therein, it is therefore considered aqd adjudged that the plaintiff have and recover of and from the said defendants, Asa Beyer, as clerk, and John Ernst, as treasurer of said school district No. 31, Atchison county, their costs in this behalf expended. And the defendants here except to each and every such finding and conclusion, and the action and decision of the court herein.”
Now this is evidently not a judgment in a contested election case. Under the act for contesting elections the court has no power to restrain county commissioners, or any one else, from levying any tax. Neither has the court any power under said act to restrain the county clerk, or any one else, from placing any tax upon the tax-roll. Nor had the court any power or authority in this case to compel the defendants Beyer and Ernst to pay the costs of litigating the questions whether the county commissioners and the county clerk should be so restrained in this particular case. Besides, Beyer and Ernst were at this time merely private citizens, having no interest in this litigation different from that of any other citizen of said school district. They had held no office for nearly two years prior to the rendering of this judgment, and were not attempting to manage the affairs of said school district in any particular. W. S. Knight, one of the plaintiffs below, was director of said school district; William Lewis was treasurer, and J. M. Ketch, a son of one of the plaintiffs, was clerk; and all of these men were opposed to said election, and to everything that was done thereunder, or in pursuance thereof. There was no excuse therefore for compelling Beyer and Ernst to litigate these questions. Said Beyer and Ernst ceased to be members of said school board before said supplemental petition was filed; and said supplemental petition stated these facts, and other facts wholly outside of the original cause of action, and then asked for the- relief for which *92the plaintiffs below finally obtained said judgment. If, when Beyer and Ernst ceased to be members of said, school board, and ceased to have any interest in said litigation, the plaintiffs had stopped all further proceedings against them, except proceedings to determine who should pay the costs up to that time, it is possible (but this question we do not decide) that the plaintiffs might have obtained a judgment against Beyer and Ernst for the costs which accrued up to that time. But the plaintiffs did not choose to stop there, and have the question then determined who should pay the costs, but they filed a new and supplemental petition, setting forth new facts which could have no place in a cause of action under said statute, and concerning which facts the defendants Beyer and Ernst could have no possible interest different from that of .the other residents of the.district; and they chose to litigate the case upon these new facts, notwithstanding the continued protestations and objections of the defendants Beyer and Ernst. And they obtained the judgment they sought upon these new facts. But the judgment cannot be sustained under said act for contesting elections; and indeed, if we take no other facts than those alleged in the various petitions of the plaintiffs, and considering all these facts to be true, it cannot be sustained upon any other statute or law. Other facts are still wanting in order to make a good cause of action in favor of the plaintiffs and against any person. (Bridge Co. v. Wyandotte County, 10 Kas. 326; Hays v. Hill, 17 Kas. 360.) The judgment is erroneous in whole, and in part. It must therefore be reversed.
Brewer; J., concurring. Horton, C. J., not sitting in the case.