Sch. City of Lafayette v. Highley, 26959.

• Docket Nº: No. 26959.
• Citation: 12 N.E.2d 927, 213 Ind. 369
• Case Date: February 15, 1938
• Court: Supreme Court of Indiana

213 Ind. 369
12 N.E.2d 927

SCHOOL CITY OF LAFAYETTE
v.
HIGHLEY.

No. 26959.

Supreme Court of Indiana.

Feb. 15, 1938.

Declaratory judgment action by Albert E. Highley against the School City of Lafayette, Ind., to obtain a declaration of the rights of the plaintiff who was a discharged superintendent of city schools, under a contract with the board of school trustees. From an adverse judgment, the defendant appeals.

Reversed, with directions to render judgment in favor of the defendant in accordance with opinion.

Transferred from Appellate Court under Burns' Ind.St.1933, § 4-209.

[12 N.E.2d 927]

Appeal from Montgomery Circuit Court; Edgar A. Rice, Judge.
Chase Harding, Robt. B. Harding, and W. J. Sprow, all of Crawfordsville, for appellant.

Kivett & Kivett, of Martinsville, Foley & Foley, of Crawfordsville, and Burleigh Davidson, of La Fayette, for appellee.

[12 N.E.2d 928]

TREMAIN, Judge.

The appellee filed this action against the appellant in the superior court of Tippecanoe county under the Declaratory Judgment Act, chapter 81, p. 208, Acts 1927, Burns' Ind.St.1933, §§ 3-1101 to 3-1115, Sections 438 to 452, Baldwin's Ind.St.1934. He alleged that the appellant was a school corporation; that he was employed by the board of trustees as superintendent of the city schools in January, 1923, and commenced services under the contract February 1, 1923; that he served under a definite written contract until August 1, 1932, and did not serve under an indefinite contract during that time; that on the 14th day of January, 1931, he and the board of school trustees executed a new definite written contract of employment, set out in the complaint, which provided for his employment as superintendent of the city schools for a term of five years beginning August 1, 1931, and ending August 1, 1936, at a salary of $5,500 per year; that on August 1, 1931, he entered upon the performance of his duties under that contract ‘and that said contract has at all times since remained in full force between said parties and has never been cancelled, modified or set aside in any manner’; that he served under said contract until August 1, 1932, and was recognized by the school board as superintendent of the city schools and performed all of the duties required of him; that on or about July 15, 1932, the said board, in disregard of the appellee's rights, purported to suspend his employment, and filed charges against him to cancel an alleged indefinite contract existing between him and the school board; that said charges were filed pursuant to section 2 of chapter 97 of the Acts of 1927; that pursuant thereto, and upon a hearing and trial, the school board entered an order canceling appellee's contract.

It is alleged that the board possessed no right or authority to proceed against the appellee under said statute for the reason that he was then, and had at all times since the first day of February, 1923, served as superintendent under a definite written contract, and had served at no time under an indefinite contract; that the action of the board was void and of no effect; that the appellee stood ready, able, and willing to perform all duties under his contract; that he was entitled to have his rights and status under said contract protected and declared by judgment of this court, and to have a judgment declaring that section 2 of chapter 97 of the Acts of 1927, above referred to, did not apply to the contract under which he was acting.

The appellant filed a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The memoranda to the demurrer contains specifications intended to show that the facts did not bring the appellee within the purview of the Declaratory Judgment Act. The demurrer was overruled by the court. Appellant filed an answer in four paragraphs.

The first paragraph of answer was a general denial. The second was verified answer denying the execution of the contract set out in plaintiff's complaint. The third alleged that the appellee was discharged as superintendent of the schools of the city of Lafayette in August, 1932, upon an order duly made and entered, pursuant to section 2 of chapter 97 of the Acts of 1927. The fourth paragraph alleged that after the filing of this action the appellee filed another action in the Tippecanoe circuit court against appellant, wherein he alleged his employment and discharge without cause under and pursuant to the same contract pleaded in the complaint herein; that the action in the circuit court was pending, and by reason thereof the plaintiff had elected to pursue a full and complete remedy under the contract, and had abandoned the action attempted to be pleaded herein, and was barred and estopped from pursuing further his litigation herein for equitable and declaratory relief.

Replies in general denial were filed to the third and fourth paragraphs of answer. The cause was submitted to the court for trial. Special findings of the court were made upon request of appellant.

The court found that appellee was employed as alleged in his complaint; that he served as superintendent of the city schools continuously from the first day of February, 1923, to the first day of August, 1932, under a special definite written contract, and not under an indefinite contract. Finding No. 4 sets out in full the...