Kostanzer v. State ex rel. Ramsey

• Decision Date: 02 November 1933
• Docket Number: No. 26050.,26050.
• Citation: 187 N.E. 337,205 Ind. 536
• Parties: KOSTANZER et al. v. STATE ex rel. RAMSEY.
• Court: Indiana Supreme Court

205 Ind. 536

187 N.E. 337

KOSTANZER et al.

v.STATE ex rel. RAMSEY.

No. 26050.

Supreme Court of Indiana.

Nov. 2, 1933.

Appeal from Montgomery Circuit Court; Brenton A. De Vol, Special Judge.

Action by the State, on the relation of Mary C. Ramsey, for a writ of mandamus to Raymond E. Kostanzer and others, constituting the Board of School Trustees of the School City of Crawfordsville. Judgment for relatrix, and defendants appeal.

Affirmed.Chas M. McCabe and W. W. Kummings, both of Crawfordsville, and Ewbank & Dowden, of Indianapolis, for appellants.

W. J. Sprow, of Crawfordsville, for appellee.

TREANOR, Judge.

This was an action of mandamus against the board of school trustees of the school city of Crawfordsville, brought by the relatrix, a teacher who had been employed by said board for six consecutive years, to compel the defendants to assign her to a place in the schools of Crawfordsville, pursuant to her indefinite contract of employment arising under the terms of chapter 97, Acts of 1927, p. 259, section 6967.1 et seq., Burns' Ann. St. Supp. 1929, and to compel the defendants to set aside their order suspending her from duty pending decision upon the proposed cancellation of her contract.

Appellee's complaint contained facts showing that by virtue of her contract of employment on September 10, 1928, for the school year 1928-1929, having been employed for five consecutive years immediately prior thereto, she became a permanent teacher under the provisions of section 1 of the Teacher Tenure Act (chapter 97, Acts 1927, supra). The complaint alleged that in June, 1929, relatrix married; that on September 6, 1929, she was notified by the secretary of the school board that in pursuance of a rule of the board making married women ineligible to employment in said schools the board would, on October 8, 1929, take up for consideration the matter of the cancellation of her indefinite contract, and that pending a decision of such cancellation she was suspended from duty. It was further alleged that on September 13, 1929, she requested a written statement of the reasons for such consideration and requested a hearing upon the matter of said cancellation. On September 19, 1929, she received from the board a statement setting forth the reasons for consideration of cancellation, which reasons were: (1) That said relatrix had violated a rule of the school board providing that no married woman shall be employed as a teacher and that the marriage of a woman teacher during the term of her employment should operate automatically to terminate her services; and (2) that there had been a justifiable decrease in the number of teaching positions, rendering relatrix' services no longer necessary. Relatrix further alleged that “prior to the opening of said school term in September, 1929, said board of the school city of Crawfordsville employed new teachers of the same grade and for similar positions as relator has filled heretofore under her said contract on the teaching staff of said schools as teacher, thereby filling positions in said schools to which relator, under her indefinite contract, would be entitled.” She asked that the defendants be ordered to assign her to a teaching place in the Crawfordsville schools, to set aside their order suspending her from duty, and to pay her a salary as provided by law.

On March 21, 1930, appellants filed their substituted amended plea in abatement in which it was alleged that on October 8, 1929, a meeting of the school board was held for the purpose of giving relatrix a hearing upon the proposed cancellation of contract, the proceedings of which meeting were set out in the plea. From the proceedings as set out it appears that the attorney for the board stated that the reasons for the proposed cancellation of contract were as set out in the written statement of reasons mailed to relatrix, which reasons were then read; that testimony was heard and documentary evidence introduced; and that relatrix and her attorney declined to make a statement or present evidence. It also appears that the following resolution was offered and adopted: “Resolved: That the so-calleSd permanent teacher's contract of Mary Cave Ramsey, formerly Miss Mary Cave, be, and the same is hereby cancelled.” The plea in abatement further alleged that the board had considered reducing the number of teaching positions; that such changes were put into effect at the beginning of the school year 1929-1930. The board's rule concerning married women teachers was set out, and it was alleged that the board considered that the marriage of the relatrix “constituted good and just cause even standing alone for the cancellation of the relator's said contract.” The plea alleged that relatrix commenced this action for mandate pending proceedings, before the board, and before the matter was finally determined, and that the order of suspension was made under the authority of section 2 of the Teacher Tenure Act (section 6967.2, Burns' etc. Supp. 1929), which reads as follows: “Sec. 2. *** Nothing contained in this section shall prevent the suspension from duty of any teacher pending a decision on the cancellation of such teacher's contract.”

Relatrix' demurrer to the plea in abatement was sustained, and appellants' demurrer to the complaint was overruled. Appellants filed an answer in three paragraphs; the first a general denial, the second alleging that relatrix had violated a rule of the board in accepting other employment and compensation while teaching, and in the third alleging the facts heretofore set out concerning notice and hearing held upon the cancellation of contract on the grounds of marriage and justifiable decrease in the number of teaching positions.A reply in general denial closed the issues. The court made a special finding of facts and concluded that the law was with relatrix. Judgment was rendered that the defendants reinstate relatrix as a teacher under her indefinite contract.

Appellants assign and present on appeal the following alleged errors:

1. The court erred in sustaining appellee's demurrer to appellants' amended plea in abatement.

2. The court erred in overruling appellants' demurrer to the complaint.

3. The court erred in its conclusions of law.

The appellee assigns as cross-error that the court erred in overruling her motion to modify the judgment so as to include therein the amount of her salary from the date of her suspension.

Appellants support their assignments of error, that the trial court erred in sustaining appellee's demurrer to the appellants' plea in abatement and amended plea in abatement, by the following proposition: “A party whose rights are subject to determination by a lesser tribunal, such as an administrative board, cannot maintain an action thereon in the courts until she has first exhausted her remedies by hearings before such board.” Appellants' proposition is sound but cannot be applied to the record facts. The school board was authorized to suspend appellee from duty pending a decision on the cancellation of her contract, and if the plea in abatement had been filed prior to the hearing and decision to cancel, it would have been error to sustain a demurrer to the plea. But the plea in abatement shows that prior to its filing the hearing had been concluded and the school board had formally decided that appellee's contract should be canceled. In short, the trial court was asked to sustain a plea in abatement for a reason which the plea discloses had ceased to exist at the time the plea was filed. In the case of Hamlin v. Stevenson, 34 Ky. (4 Dana) 597, the plaintiff had brought suit while still an infant. A plea in abatement was filed on the day the plaintiff became of age and upon appeal the Court of Appeals held that infancy and want of prochein amie was not pleadable in abatement “as he then had a right to prosecute his suit in his own name, without the intervention of a prochein amie.” We agree with the foregoing and conclude that when, as in the instant case, a cause of abatement has ceased to exist in fact before a plea has been filed, such plea is not good even though the cause did exist when suit was filed. It was not error to sustain the demurrer to the plea in abatement.

It is not material whether the trial court erred in overruling appellants' demurrer to appellee's complaint. Appellants chose to go to trial on the merits and at the request of appellants the trial court made a special finding of facts. No question as to introduction of evidence is presented by appellant and nothing in the assignment of errors challenges the sufficiency of the evidence to support the finding of facts. The policy of the law of our trial and appellate procedure is to avoid reversals when a case has been tried fairly on its merits and the correct result reached even though the trial court may have erred in some particular ruling. This policy is given effect by express statutory enactment in respect to error in overruling demurrers. ¹ We recognize, of course, the limitation that the record must show that the merits of the cause have been fairly determined and that the erroneous ruling did “not affect the substantial rights of the adverse party.” Miller v. Bottenberg et al. (1895) 144 Ind. 312, 41 N. E. 804, 805. An examination of the record in the instant case leaves no doubt that the parties and the trial court considered the issue to be simply whether the action of appellants in canceling appellee's indefinite contract was in accordance with the Teacher Tenure Act. The special answer of appellants presented this issue; the evidence was directed to it and the special finding of facts covered it. We conclude that appellants were in no way prejudiced by the trial court's ruling on the demurrer to the complaint.

The remaining question is whether the court erred in its conclusion of law stated on the special finding of facts that “the law is with the plaintiff and that the plaintiff is...