
    Preece v. Faulkner, et al.
    (Decided November 12, 1912.)
    Appeal from Pike Circuit Court.
    1. Schools and School Districts — When District Without Schoolhouse — Use of Room in Academy. — An educational hoard of a school district may contract with an academy for the use of one or more of its rooms in which to teach the public school so long as the district is without a suitable house. But a merger of fhe school with an academy would be a violation of the law.
    
      2. Schools and School Districts — Payment of Teacher — Pleading.— There is nothing in the pleadings authorizing a judgment against the teacher for the return of the money she had received nor dioes the proof authorize it.
    STRATTON & STEPHENSON for appellant.
    AUXIER, HERMAN & FRANCIS for appellee:
   Opinion of the Court by

Judge Nunn —

Affirming.

Appellant, a citizen of educational division number eight in subdistrict seventy in Pike County, brought this action against W. E. Flamary; superintendent of schools, and Garnette Faulkner, a school teacher in his district and division. The action was instituted October 19, 1911, soon after the school term commenced, and'before the teacher was paid any part of the public school fund for teaching the school. Appellant alleged that an institution known as “The Matthew Scott, Jr., Academy,” had a building and was conducting a sectarian school in that county; that it was controlled and managed by the Presbyterian Church, a religious organization; that the public school for that district was being taught in the same building and was merged with this select Presbyterian school. He asked that the superintendent of schools be enjoined from paying the teacher of that district, Garnette L. Faulkner, and that she be enjoined from receiving any part of the public school.money.

'There was only one deposition taken in the case and that was Mr. Charles’, secretary of the school board. He testified that the district was without a suitable school building in which to have the school taught; that the house was badly out of repair, and that nearly all the school patrons of the district had petitioned the trustee to rent a room in the academy building, which was done and the school was taught there by Miss Faulkner, and that the advanced scholars in the school were permitted to study higher branches than those taught in the public school and to recite these studies in rooms other than the one rented, and to other teachers. He was of the opinion that the chapel exercises were attended by all the pupils in the public school as well as those in the academy.

Hpon a trial of the case the lower court adjudged that the manner in which the school was conducted and classified; that is the placing of some of the pupils of the public school under the care and supervision of teachers other than those employed by the board of education, was a merger of the public school with the academy which was a violation of law, and issued an injunction to prevent such management in the future, but held that an educational board of a school district had a perfect right, under the laws of Kentucky, to contract with the academy for the use of one or more of its rooms in which to teach the public school so long as the district was without a suitable house. The lower court was also of the opinion that Miss Faulkner was entitled to her pay as the teacher of the school.

It appears that Miss Faulkner received her salary for teaching as it fell due under her contract, no injunction having been issued, and it appears that at the time of the trial in the lower court, she had been paid in full, and it is urged on this appeal that the lower court erred in not rendering a judgment against her for the amount of the money she received under her contract. There is nothing of this kind asked in the petition or any amendment, therefore, the pleadings did not authorize the court to render such judgment. Nor does the proof.

For these reasons, the judgment of the lower court is affirmed.  