Sch. Dist. No. 94, Grant Cnty. v. Gautier

• Decision Date: 10 September 1903
• Citation: 1903 OK 95,13 Okla. 194,73 P. 954
• Parties: SCHOOL DISTRICT NO. 94, GRANT COUNTY, v. NELLIE GAUTIER.
• Court: Oklahoma Supreme Court

1903 OK 95

73 P. 954

13 Okla. 194

SCHOOL DISTRICT NO. 94, GRANT COUNTY, v. NELLIE GAUTIER.

Supreme Court of Oklahoma

Decided: September 10, 1903

Syllabus

¶0 1. JURISDICTION--Waiver of. In a case where the district court has original jurisdiction of the subject-matter, and the case comes into said court improperly by appeal, and both parties appear, file pleadings and go to trial without objections, the question of jurisdiction as to the manner of getting into court is waived, and such objection will not be heard for the first time in the supreme court.

2. SCHOOL BOARD--Authority of. Notwithstanding the statute authorizes the board of a school district, in conjunction with the county superintendent, to dismiss teachers for incompetency, cruelty, negligence or immorality, such remedy is not exclusive, and the school board may contract with the teacher, giving the board authority to remove the teacher for these or other causes, and in such manner as the contract may provide.

3. SAME--Removal of Teacher--How Exercised. A school board having authority to dismiss a teacher, cannot arbitrarily exercise such power for personal reasons, or without sufficient grounds affecting the teacher's efficiency and usefulness. The board is required to act with discretion and judgment, and take all necessary steps to inform themselves, before proceeding to discharge a teacher for cause.

4. SAME--Removal of Teacher-Actions not Final, When. The action of a school board, when authorized, in discharging a teacher, is not final or conclusive, and in a suit by the teacher to recover for the residue of the term, the question of sufficient grounds having existed to warrant the teacher's discharge, is one to be determined by the court or jury trying the case.

5. PERSONAL SERVICES--School Teacher May not Recover Attorney's Fee. Under a statute authorizing an attorney's fee to be taxed for plaintiff's attorney in actions by laborers, clerks, servants, nurses or other persons for personal services, a school teacher is not entitled to recover such attorney's fee in a suit for wages as teacher. The statute is intended to favor persons performing manual labor or menial services, and does not embrace professional services.

This is an action to recover for breach of contract, by a discharged school teacher against the school district. The defendant in error, Nellie Gautier, was a duly licensed school teacher, and on August 20, 1900, entered into a written contract with the plaintiff in error, which contract is as follows:

"TEACHER'S CONTRACT.

"It is hereby agreed by and between school district No. 94, county of Grant, Territory of Oklahoma, and Nellie Gautier, the holder of a second grade certificate, this day in force, that said teacher is to teach, govern and conduct the public school of the said district to the best of her ability. follow the course of study adopted by the district board, keep a daily register of the attendance and studies of each pupil belonging to the school, make all reports required by law, and such other reports as may be desired by the county superintendent of public instruction, and endeavor to preserve in good condition and order the school house, grounds, furniture, apparatus, library, and such other property as may come under the immediate supervision of said teacher for term of one school month commencing on the 17th day of September, A. D. 1900, for the sum of thirty-five dollars per school month, to be paid at the end of each month. Provided: That in case said teacher shall be legally dismissed from said school, or shall have her certificate legally annulled by expiration or otherwise, then said teacher shall not be entitled to compensation from and after such dismissal or annullment. Provided, further, that the wages of said teacher for the last month of school term shall not be paid until such teacher shall have made the report hereinbefore mentioned.

"And the school district hereby agrees to keep the school house in good repair, and to provide the necessary fuel, school register and other supplies as may be necessary.

"In witness whereof we have hereunto subscribed our names this 20th day of August, A.D. 1900.

"It is hereby further agreed by and between school district No. 94, Grant county, O. T., and Nellie Gautier, that if at the expiration of one month said Nellie Gautier has given satisfaction as a teacher to the majority of the members of the district board, the said Nellie Gautier may continue teaching for a period of six months longer, with the distinct understanding that at any time during the six months said Nellie Gautier fails to give satisfaction as a teacher to a majority of the members of the school board of district No. 94, then said Nellie Gautier shall hand in her resignation to said school board, or said school board may dismiss her.

"S. F. CONES,

"T. L. MANN,

"NELLIE GAUTIER,

"Teacher."

Under the provisions of this contract the teacher began teaching the school at the time designated, and taught five months. Just prior to the expiration of the fifth month, the director of district No. 94 informed her that, her teaching was not satisfactory to the school board, and requested her resignation. She failing to resign on the last day of the fifth month, she was served with the following written notice:

"Lamont, Feb. 1st, 1901.

"Miss Nellie Gautier, Teacher School District No. 94, Grant Co., Okla.:

"The agreement between the school board of school district No. 94, Grant Co., Okla., and yourself was that at any time after the expiration of one month, when a majority of said school board were dissatisfied with your government and teaching of the school, and they notified you of said dissatisfaction, the school should close; therefore, we hereby notify you that the dissatisfaction in the district is general, as evidenced by the many complaints made by the patrons of the school to us, and that you cannot teach or draw wages for teaching from this date.

"J. M. SMITH, Director.

"S. F. CONES, Clerk.

"L. MANN, Treasurer."

On receipt of this notice Miss Gautier closed the school, and on Monday following a new teacher took up the school, and taught the unexpired two months. She was paid for the five months she taught, and held herself ready to teach the remainder of the term, and was unable to procure other employment in the meantime. She sued this school district in the probate court of Grant county for the sum of $ 70, the wages for two months as fixed by her contract. The school district appeared, and filed a demurrer to the petition. The probate court sustained the demurrer, and the plaintiff, refusing to amend, the court rendered judgment dismissing the petition, and against the plaintiff for costs. From this judgment she appealed to the district court of Grant county. The school district appeared in that court without objection, and re-submitted the demurrer to that court, and it was there overruled, and the school district given leave to answer. It filed its answer without objection, admitting the execution of the contract sued on, and that the teacher had been discharged, and alleging as a cause for her discharge that she "wholly failed to give satisfaction to a majority of the district board as provided in said agreement; that during said employment she wholly failed and neglected to maintain proper order, and properly govern the school by reason of her inability to teach, govern, control and conduct said school." The issues were closed, and the cause tried to a jury and a verdict rendered in favor of the plaintiff for the sum of $ 70.00.

The court overruled a motion for a new trial, and rendered a judgment in favor of plaintiff and against the school district for the sum of $ 70, and also ordered that an attorney s fee of $ 15 be taxed in favor of plaintiff's counsel, as part of the costs adjudged against the defendant. A motion was made to strike out this item of costs as an improper charge. The court overruled this motion, and the school district appeals to this court.

June, 1903, Decided

Error from the District Court of Grant County; before John L. McAtee, Trial Judge.

W. H. C. Taylor, for plaintiff in error.

Mackey & Simons, for defendant in error.

BURFORD, C. J.:

¶1 The defendant in error objects to the jurisdiction of the district court of Grant county for the reason that the appeal from the probate court was upon a question of law only, and should have been to this court, and not to the district court. We deem it unnecessary to discuss the question as to whether this appeal should have been to the supreme or the district court. It is a case in which the district court had jurisdiction of the subject-matter, and when it had the parties properly before it, the manner of their getting into court is not material. The plaintiff went to the district court with her appeal; the defendant followed her into that court, and without objection to its jurisdiction, presented a demurrer to the petition, and after invoking the ruling of the court on the demurrer, filed an answer to the merits and went to trial to a jury. No objection to the jurisdiction of the district court was ever made in that court, and it is now too late to raise the question in this court. The defendant waived all question as to jurisdiction of its person, and voluntarily submitted itself to the jurisdiction of the district court. If this question had been raised by special appearance and motion to dismiss the appeal in the district court, the result would have been different.

¶2 The next proposition presented is as to the effect of the last provision in the contract sued on. Sec. 5799, Okla....