Keener Sch. Tp. v. Eudaly

• Decision Date: 31 March 1931
• Docket Number: No. 13954.,13954.
• Citation: 175 N.E. 363,93 Ind.App. 627
• Parties: KEENER SCHOOL TP. et al. v. EUDALY.
• Court: Indiana Appellate Court

93 Ind.App. 627

175 N.E. 363

KEENER SCHOOL TP. et al.

v.EUDALY.

No. 13954.

Appellate Court of Indiana, in Banc.

March 31, 1931.

Appeal from Porter Circuit Court; Grant Crumpacker, Judge.

Action by Rufus A. Eudaly against the Kenner School Township of Jasper County and others. From a judgment for plaintiff, defendants appeal.

Affirmed.

Kelly & Ryan, of Valparaiso, and Hanley & Hanley, of Rensselaer, for appellants.

Halleck & Halleck, of Rensselaer, for appellee.

CURTIS, J.

On January 8, 1927, Rufus A. Eudaly, appellee herein, was discharged as teacher and principal of the Keener township schools which were located at De Motte, after a hearing before Frank M. Hart, then trustee of Keener township, on a petition filed by certain patrons against appellee.

Appellee, Eudaly, under section 6790, Burns' Ann. St. 1926, Acts 1865, p. 3, appealed from the order of dismissal of the township trustee to the county superintendent of schools of Jasper county. On January 25, 1927, a hearingbefore such superintendent of schools was completed, and Morgan L. Sterrett, county superintendent of schools, sustained the finding of Frank M. Hart, trustee, and confirmed the order of dismissal of appellee as teacher and principal of such school.

This action was brought by appellee against appellants to set aside the order of dismissal of appellee by appellant Hart, trustee of Keener township, and appellant Sterrett, county superintendent of schools of Jasper county, Ind., and to recover a money judgment for services as teacher against Keener township which he tendered the township as a school principal under his written contract of employment. His claim was that the order of dismissal was fraudulent.

Trial was had before the court on the third paragraph of amended complaint, to which each appellant had filed separate demurrers and which had been overruled. Appellant Sterrett filed three paragraphs of answer, appellant township filed two paragraphs of answer, and appellant Hart filed one paragraph of answer to the third paragraph of amended complaint. Appellee filed reply to each of the several answers of appellants. The court found for appellee; rendered judgment for $1,046.20 in appellee's favor and the order dismissing appellee be set aside.

Appellants appeal and assign as error the overruling of each appellant's separate demurrers to the third paragraph of amended complaint and the overruling of each appellant's separate motion for new trial. The motions for new trial cover thirty-six different specifications, but appellants argue but ten causes under their motions for new trial in this court.

Appellee's original complaint was in three paragraphs, to which a motion was made and sustained to make certain parts more specific, whereupon appellee filed his amended complaint in three paragraphs. Previously, however, the court had ordered the third paragraph of amended complaint docketed as a separate cause of action. Each of the appellants had addressed separate demurrers to the third paragraph of the amended complaint. This accounts for the fact that some of the specifications in the memoranda filed with the demurrers refer to other paragraphs of the amended complaint.

Appellants, in their points and authorities, however, discuss only the following pertaining to the alleged error of the court in overruling each of the separate demurrers of the appellants to the third paragraph of the amended complaint so docketed: (1) The appellant Keener school township was not liable for the wrongful acts of its officers; (2) the presumption is that the trustee observed the law; (3) the facts alleged disclose the procedure and hearing by which appellee was dismissed was regular in every way and the decision of the county superintendent after an appeal by the appellee was final; (4) the appellee, having accepted a license, is bound by all the provisions of law surrounding the same, and, when the jurisdiction of the county superintendent is shown as disclosed by the complaint, the allegations with reference to his bias and want of judicial capacity are without force in law, for the county superintendent is answerable only to those who elect him.

Appellee's third paragraph of amended complaint, after alleging that Frank M. Hart now is, and since January 1, 1927, has been, the elected, qualified, and acting township trustee of Keener township, Jasper county, and that Morgan L. Sterrett now is, and for more than five years last past has been, the duly elected, qualified, and acting county superintendent of schools of Jasper county, alleges that on May 4, 1926, he was the holder of a life license to teach in the high schools of Indiana, and on that day entered into a written contract and agreement with appellant Keener school township by the terms of which appellee agreed to teach in the public schools of Keener school township for the school term of eight months beginning September 13, 1926, for which services appellee was to receive $1,800 and an additional compensation for attending teacher's institutes; that on September 13, 1926, appellee entered upon his duties as a teacher and principal in the public school of Keener township. On January 1, 1927, a petition was filed with Frank M. Hart as trustee of Keener township by some of the patrons of the Keener township schools against appellee asking his dismissal for alleged incompetence; that on January 8, 1927, a hearing was had before the trustee, and appellee was dismissed as such teacher; that appellee took an appeal to Morgan L. Sterrett, county superintendent of schools of Jasper county, who, on January 25, 1927, after a hearing, sustained the finding of Hart as trustee and confirmed the dismissal of appellee as a teacher in the De Motte High School, being Keener township high school.

It is further alleged that appellee continued to teach in the Keener township school in the village of De Motte, where he had theretofore been teaching, until January 8, 1927; that on January 10, 1927, he presented himself at the schoolhouse and offered to teach in compliance with his contract, but at that time was wrongfully ordered from such school grounds by appellant Hart, who at that time informed appellee that, if he returned to the school grounds, he (appellee) would be arrested and prosecuted; that after January 8, 1927, because of such dismissal, appellee rendered no further services as a teacher in that school; that appellee had performed all the conditions of the agreement on his part to be performed, except as he had been prevented and prohibited from so doing by defendants; that, after such dismissal, appellee made diligent and earnest effort to obtain employment elsewhere, but was unable to obtain other employment.

The third paragraph of amended complaint further alleges that, prior to the filing of the petition against appellee, no facts existed which supported the pretended charges; that no evidence was offered or given at the hearing before appellant Hart, trustee, or at the hearing before appellant Sterrett, county superintendent, which would show, or tend to show, that appellee had been incompetent or had breached his contract in any way; that the charges against appellee were not heard or determined by appellant Hart or appellant Sterrett in good faith; that such charges were wholly false and untrue, and were known to both Hart and Sterrett to be false and untrue, and that such finding and attempted dismissal by Hart and Sterrett was wholly arbitrary, and was so done unlawfully and maliciously for the purpose of depriving appellee of his rights under the contract; that “said Hart and Sterrett advised and counseled with certain patrons of the Keener Township School and wrongfully and maliciously brought about the circulation of and filing of the petition for the discharge of the plaintiff” (appellee); that, before the hearing on January 8, 1927, Hart and Sterrett wrongfully and fraudulently conspired and agreed with each other and with divers other persons to find the pretended charges true as against appellee; that the pretended dismissal and discharge of appellee was brought about “wholly by the corrupt and fraudulent agreement and conspiracy of the said Hart and Sterrett and by reason of their personal and political malice and prejudice against this plaintiff (appellee) which malice this plaintiff says existed, and not by reason of any consideration of the evidence or as a result of honest and sound judgment and discretion, based upon the evidence given at either of such hearings”; that, under the law, no appeal lies from the judgment dismissing appellee; that such judgment was rendered by reason of the fraudulent, illegal, oppressive, and unwarranted acts of Hart and Sterrett.

It is further alleged that Keener school township, since January 8, 1927, has refused to pay appellee the monthly installments of $225; that there remains due him $978.75, being the unpaid balance of his contract salary of $1,800 and interest thereon of $90 and compensation for the institutes. The prayer of the third paragraph was that the judgment of dismissal be declared void and vacated, and appellee be given judgment against appellant Keener school township for $1,800.

Section 6790, Burns' Ann. St. 1926, section 4, Acts 1865, p. 3, provides: “Appeals shall be allowed from decisions of the (township) trustees relative to school matters to the county superintendents, *** and their decisions of all local questions relating to the legality of school meetings, establishment of schools, and the location, building, repair or removal of school-houses, or transfers of persons for school purposes, and resignation and dismissal of teachers, shall be final.” (Our italics.)

The amended third paragraph of appellee's complaint upon which trial was had would be unavailing and insufficient and demurrable if the order of dismissal of the county superintendent is final and conclusive. This paragraph proceeds upon the...