
100 N.W.2d 418 (1960)
SHERIDAN RURAL INDEPENDENT NO. 5 SCHOOL DISTRICT, and the Board of Directors thereof, et al., Denominated as Appellants in the trial court,
v.
GUERNSEY CONSOLIDATED SCHOOL DISTRICT IN POWESHIEK COUNTY, Iowa, et al., Denominated as Appellees In the trial court.
COUNTY BOARD OF EDUCATION IN AND FOR IOWA COUNTY, Iowa, Plaintiff-Appellee,
v.
STATE DEPARTMENT OF PUBLIC INSTRUCTION of the State of Iowa, et al., Defendants-Appellants.
COUNTY BOARD OF EDUCATION IN AND FOR POWESHIEK COUNTY, Iowa, Plaintiff-Appellee,
v.
STATE DEPARTMENT OF PUBLIC INSTRUCTION of the State of Iowa, et al., Defendants-Appellants.
Edward BAITINGER et al., Plaintiffs-Appellees,
v.
BOARD OF EDUCATION OF POWESHIEK COUNTY, Iowa, et al., Defendants-Appellants.
No. 49839.
Supreme Court of Iowa.
January 12, 1960.
As Clarified on Denial of Rehearing February 11, 1960.
*419 Boardman, Cartwright & Druker, Marshalltown, for appellants.
Ennis McCall, Newton, Tomasek & Vogel, Grinnell, Orville W. Bloethe, Victor, for appellees.
HAYS, Justice.
Three appeals and a proceeding in certiorari, all involving a decision of the State Board of Education, relative to the proposed reorganization of the Brooklyn-Guernsey-Malcom Community School District under Chapter 275, Code 1958, I.C.A., were consolidated for trial in the lower court, and likewise on this appeal. All facts are stipulated.
On January 21, 1958, petitions for the reorganization of the Grinnell-Newburg Community School District, hereafter called the Grinnell District, were filed with the County Superintendent of Schools for Poweshiek County, Iowa. They embraced land in Poweshiek and Jasper Counties. Notice was given and hearings had before the Joint Board. On March 3rd the proposed reorganization was approved and the boundaries fixed. In so doing, nine sections, or parts thereof, included in the petitions and which were scattered intermittently along the proposed west boundary, were excluded by the Board. This action was approved on appeal by the State Board of Public Instruction and no further appeal was taken. Following an election, and the selection of Directors, the said District came into being on July 1, 1958. No question as to the validity of this District is involved.
On January 31 and February 1, 1958, petitions for the reorganization of the Brooklyn-Guernsey-Malcom District, hereafter called the Brooklyn District, were filed with the County Superintendent of Schools of Poweshiek County, Iowa. They embraced land in Iowa and Poweshiek Counties. Notice was given and hearings were commenced before the Joint Board on March 6th. It appeared that the proposed boundaries of the said District included 24 sections of land that were included in the then pending Grinnell reorganization, and on account of which the jurisdiction of the Board was questioned by objectors. The hearing was recessed for 30 days and reconvened on April 3rd. At this hearing, *420 John E. Talbott, an attorney, representing the petitioners, filed a formal withdrawal of the overlapping territory, the 24 sections, and asked that they be not considered by the Board. The withdrawal was approved by the Board and on April 4th, the proposed reorganization of said District was approved and the boundaries fixed. As fixed they were as contained in the petitions as amended by the withdrawal, and excluded from the District the nine sections, or parts thereof, that had been excluded by the Joint Board hearing the Grinnell proceedings.
On appeal to the State Board of Public Instruction, the jurisdiction of the Joint Board was upheld, and in addition to approving its action, the nine sections which had been excluded by it were added to the Brooklyn District. On the three appeals, and the certiorari action, as above stated, the trial court held that, due to the overlapping of territory with the Grinnell District in the original petitions filed, the Joint Board did not have jurisdiction to take action upon the petitions and dismissed the same. While other propositions were submitted to the court, it held them to be moot in view of its finding as to jurisdiction. The trial court based its decision entirely upon the case of State ex rel. Harberts v. Klemme Community School District, 247 Iowa 48, 72 N.W.2d 512, hereafter called the Klemme case. This appeal followed.
In the Klemme case, petitions to form the Belmond School District were filed with the County Superintendent of Schools of Hancock County, and combraced land in Hancock and Wright Counties including land in the Goodell School District. Shortly thereafter, petitions were filed with the same County Superintendent for the reorganization of the Klemme District. It included land only in Hancock County but embraced the same land in the Goodell District as was included in the then pending Belmond District. Thereafter, the respective Boards approved the proposed reorganizations and fixed the boundaries as were set forth in the respective petitions.
An election and selection of directors for each district followed. In a quo warranto proceedings questioning the validity of the Klemme organization, we reversed the trial court and held "that until the prior-pending reorganization of the Belmond District was completed or abandoned, the Hancock County Board of Education could acquire no jurisdiction of the territory included in the Belmond petition. Its attempt to so do has resulted in a jurisdictional defect in the Klemme proceedings fatal to its legal existence and voids the election." (Italics added.) At page 51 of 247 Iowa, at page 515 of 72 N.W.2d, it is said "It is elementary that the same land cannot be within the jurisdiction of two pending reorganization proceedings at the same time. * * * Jurisdiction was obtained first over the territory in the Goodell District * * by the Belmond Board. It was therefore improper for the Hancock County Board to attempt to fix boundaries so as to include that land." (Italics added.)
While the use of the term "jurisdiction" as it is used in various places throughout the decision may be somewhat confusing, we think that its meaning is clear. It places jurisdiction in the proper boards with the filing of the petitions and the giving of notice for hearing thereon, as does Chapter 275, Code 1958, I.C.A., in the instant case; it recognizes the established rule of law, see Mehmen v. Kappel, 242 Iowa 1032, 47 N.W.2d 832, that any attempt by the Board before which the last filed petitions were pending, to exercise jurisdiction over the overlapping territory is in excess of its authority; that the territory included in the Klemme District, as was voted upon at the election, was an entity and embraced land illegally included therein, and it followed, of course, that the entire election was illegal and void. If this decision holds other than above stated, and there is therein anything to the effect that, because of the overlapping, the proper Board was without authority to hold hearings on the petitions and adjust matters according to law, we fail to find it. If so, *421 the decision is overruled in that extent. See, also, Bohrofen v. Dallas Center Independent School Dist., 242 Iowa 1070, 49 N.W.2d 514; Independent School Dist. of Switzer v. Gwinn, 178 Iowa 145, 159 N.W. 687.
When we compare the factual situation in the instant case with the Klemme case, we doubt that it is at all applicable. In the instant case, the record is clear that the Board, rather than attempting to obtain territory included in another pending matter, adjourned the hearing in order to study the situation and studiously avoided such usurpation. Even without the withdrawal, which we will discuss later, the Board had authority to make the decision that it did. The trial court was in error in dismissing the petitions for reorganization.
II. In view of the above holding, another proposition urged to the trial court, but not ruled upon, and now urged here by appellees in support of the trial court's decision, must be considered. That they may do so, without taking a cross-appeal is well settled and appellants' motion to strike the same is overruled. See Pappas v. Evans, 242 Iowa 804, 48 N.W.2d 298. It is to the effect that the withdrawal of the overlapping territory by the petitioners precluded its inclusion therein at a later time.
Appellants seek to nullify this withdrawal by showing that the withdrawal was made by the petitioners while the appeal was taken by the boards of affected school districts and they are not bound thereby. At least under the facts of the instant case, we find no merit in this contention.
As above stated in Division I, at the time of the hearings on March 6th and April 3rd, the Joint Board had jurisdiction and authority to fix the boundaries within the area included in the petitions, so long as it did not, by so doing, infringe upon the priorities of other pending proceedings. On April 3rd, any attempt by the Board to include the nine sections in the proposed district would, under the Klemme case, have been in excess of its jurisdiction. It was not until May 11th, that the nine sections were eliminated from the Grinnell District as on that date the time for appeal from the decision of the State Board of Education expired with no appeal being taken. In the Brooklyn proceedings the appeal to the State Board was taken on April 14th and the decision rendered on May 2nd. Thus the State Board in including the nine sections in the Brooklyn District assumed jurisdiction to act where no jurisdiction to act existed and the inclusion of the nine sections was clearly illegal. This would be so even without the withdrawal of the overlapping territory.
By the filing of the withdrawal at the time of the hearing on April 3rd, with the approval of the Board, the only area then to be considered by it did not include the nine sections. It would we think under these circumstances be, as we said in State ex rel. Ondler v. Rowe, 187 Iowa 1116, 175 N.W. 32, 36, "entirely competent for the petitioners to have agreed to let the petition stand as for the consolidation of the remaining territory, and upon a declaration made to the board, that body could properly have proceeded to call an election accordingly." That in effect is what was done. The petitions, after the withdrawal, were in fact new petitions which did not contain the nine sections. Zilske v. Albers, 238 Iowa 1050, 29 N.W.2d 189, and Ward v. Incorporated Town of Clover Hills, 240 Iowa 900, 38 N. W.2d 109, cited by the appellants and Hohl v. Board of Education of Poweshiek County, Iowa, 94 N.W.2d 787, cited by appellees, are not in point.
In addition to the nine overlapping sections excluded by the Joint Board, heretofore discussed, said Board also excluded from the boundaries of the Brooklyn District as fixed at its April 3rd hearing, other territory included in the original petition. On the appeal to the State Board of Education, this excluded territory was added to the Brooklyn District. On the appeal to the district court, this part of the State Board's decision was held to be moot in view of its decision as to the nine overlapping sections. It did however state that if called upon to determine the same it would sustain the State Board.
Appellee urges here, as in the trial court, that the State Board's action was arbitrary, unreasonable and contrary to the evidence presented to the Joint Board. That *422 the State Board had authority to act in the matter is conceded. See also, Board of Education In and For Franklin County v. Board of Education In and For Hardin County, 250 Iowa ___, 95 N.W.2d 709. The issue presented was factual and is not for this court to determine in the absence of fraud or other illegal act upon the part of the determining board. In re Community School District of Malvern, 250 Iowa ___, 98 N.W.2d 737. We find nothing in the record to sustain the claim that the State Board in any way acted illegally or arbitrarily.
We hold the decision of the State Board of Education should be modified by the exclusion therefrom of the nine overlapping sections and as thus modified, affirmed and that the trial court was in error in dismissing the original petition and must be reversed.
Reversed and remanded for proper decree.
All Justices concur.
