Page:North Dakota Reports (vol. 48).pdf/71

 fendants over to another action for an accounting. When a party goes to trial in an action to foreclose a mortgage, then is the proper time for an accounting concerning the amount due on the mortgage.

The case is remanded for additional evidence on the question of payment, to be submitted under amended pleadings fairly presenting the question which the trial court must hear and determine.

Reversed and remanded for further proceedings in accordance with this opinion.

, and, J J. concur.

, J. I concur in the result.

STATE OF NORTH DAKOTA ex rel., W. B. KNOX, L. L. TAYLOR. HERMAN KELLER, and WILLIAM TSCHUDI, on Behalf of Themselves and Others Similarly Situated, Appellants. v. FATTH STEVENS. as Countv Superintendent of Schvols of Dickey County, State of North Dakota, Respondent.

Schools and school districts—division of common-school district—withdrawing names from petition—county commissioners had no authority for dividing school district.

1. Where certain school electors undertook to divide a certain common-school district, by attempting to organize a part of it into a new district, and, in pursuance of that object, circulated and had signed a petition by fifty-five electors in the territory proposed to be organized into the new school district, which number was two thirds of the whole number of school electors residing in that territory, which were seventy-eight; and where eleven of such petitioners withdrew from such petition by signing a remonstrance against the creation of a new district, prior to or on the date of hearing on the petition.

It is held the county commissioners had no authority to make the order dividing the school district and creating the new district, for the