School District No. 2 v. Shuck, No. 6468

No. 6468 | Colo. | Jan 15, 1911

Mr. Justice Garrigues

delivered the opinion of the court:

There are only two questions in the case: First, were the demurrers properly sustained; second, is the judgment right. Both must be answered in the affirmative. The second and third defenses plead fraud in procuring said certificate and contract, in that plaintiff represented himself a man of good moral character, whereas his character was bad. Fraud cannot be pleaded this way generally. The acts or things constituting fraud must be set out. Saying one’s character is bad, is the pleader’s conclusion. His acts, or things he does which make it bad, must be pleaded. Others might form different conclusions. The pleader has no right to- make himself the judge of another’s character and deprive the court of the facts upon which he bases his conclusion. The third defense states rumors circulating in the neighborhood that plaintiff was an immoral man, which was injurious to and demoralizing, said school; that some of the Board, not in an official capacity, but personally, inquired around and found there was some basis for the talk; whereupon the Board gave plaintiff thirty days leave of absence and directed him to clear it up, which he did not do. So the Board revoked his certificate and notified him he no longer had authority to teach; in other words, took this way of discharging him. All of said action was taken ex parte, with no charges preferred, no notice to the plaintiff and no opportunity to appear and be heard before the board. This is no defense. The statute provides a teacher can only be discharged upon good cause shown. Neighborhood talk and rumors, report to the board by individual members upon personal investigation that there was some foundation for the talk, without specific charge made against the teacher with notice and opportunity to refute said charge before the board, acting officially, is not good cause shown. While we do not mean there must be formal pleadings and a trial before the board with the rules and formalities of court proce•dure; still we think that good cause shown, means specific accusation, notice, evidence of the charge before the board in its official capacity, and an opportunity to the teacher to be heard and refute the charge. The fifth defense pleads in effect that plaintiff was trying to recover for his April, May and June wages after his certificate had been revoked by the board. This is no defense. That is what plaintiff pleaded and about which he was complaining. It is neither a denial nor a plea in confession and avoidance. If the defendant had pleaded that at the time of making said contract, plaintiff held a certificate, but before the expiration of his year, to wit: February 18th, 1906, it expired by limitation and he failed to procure another, the plea would have been good in this case.

This action was on a written contract for the recovery of liquidated damages and the court could have entered a default judgment without reversible error for twb reasons: first, defendant’s counsel during the trial stated to the court that he relied wholly upon his demurrers and gave the court to understand that he did not care for the issue or traverse raised by the first .defense, did not rely upon that. The effect of his action was to abandon or waive in open court, during the trial,- his first defense. He should now he held to his statement during the trial. When counsel elected to stand upon his answers and waived his first defense, plaintiff was entitled to a default judgment upon his complaint, without evidence.' The complaint was confessed, the damages were liquidated and no evidence was necessary. In the second place, the complaint was verified, the answer was not. If the plaintiff had moved to strike it from the files for want of verification, and judgment on the pleadings, it would not have been error to have sustained the motion. The court would probably have, been reluctant in doing so, but it would not have been error in this case as it stood. Judgment by default without evidence, would have accomplished the same' result. It is immaterial, therefore, in the result reached, whether the evidence proved all the allegations of the complaint. Plaintiff was entitled to a judgment without evidence. If he imperfectly did an unnecessary thing by introducing evidence, it did not destroy his right to a judgment.

The statute gives county superintendents power to' revoke certificates they have issued, but school boards have no such power. The distinction in apparent. A county superintendent’s certificate is for the whole county, whereas, á hoard’s is confined to the one school district. The teacher can teach upon it in no other district. There is no need of giving the board power to cancel it. If there is good cause for removal of the teacher, it is an easy matter. The proper way is not for the hoard summarily to revoke his certificate, hut to discharge him upon good cause shown, following the statute.

The judgment is affirmed. Affirmed.

Chief Justice Campbell and Mr. Justice Musser concur.