Cottingham v. Sharpless

MARKS, J.—This is an appeal from a judgment of the Superior Court of San Diego County removing defendant as a probationary teacher of the Oeeanside-Carlsbad Union High School District of that county. The conduct of defendant which formed the subject of complaint occurred in March, 1937. Therefore the 1937 amendments of the School Code are not involved here.

Defendant presents several grounds for reversal of the judgment which may be consolidated as follows: (1) that the trial court possessed no power to remove defendant as a teacher because (a) such power is not conferred upon it by law (sec. 5.654, School Code, Stats. 1935, p. 1885), and (b) that as defendant resigned at the close of the school year 1936-37 he could not be removed from a position he was not occupying at the time of trial in September, 1937; (2) that the evidence is not sufficient to support the findings of misconduct on the part of defendant and to justify his removal as a teacher of the Oeeanside-Carlsbad Union High School District which we will hereafter refer to as the district.

The trial court found that defendant was not fit for service as a teacher in the district and that his conduct and inability to control himself and the students justified his dismissal. In the judgment the action of the school board, suspending and preparing to dismiss defendant was approved and he was dismissed as such a teacher.

Defendant strongly urges that the statute (sec. 5.654, School Code) only authorizes the trial court to find and adjudge that defendant was unfit to serve the district as a teacher (secs. 5.650 and 5.680, School Code) and to so render judgment; that thereafter the actual dismissal of the teacher was the exclusive function of the school-board. Plaintiffs are equally vigorous in controverting this argument.

While the arguments are interesting we cannot see how they can affect our decision of this case. It is admitted that defendant voluntarily resigned as a teacher, the resig[553]nation being effective on June 30,1937. He was not a teacher of the district and did not claim to have the right to teach in the district in September, 1937, when the case was tried. If we should assume, without holding, that the trial court exceeded its power in dismissing defendant as a teacher, that error, if any, was not prejudicial, as defendant, according to his own argument and admission, had already dismissed himself. An error must result in a miscarriage of justice before it is a sufficient ground for reversal. (Sec. 4½, art. VI, Constitution.) Under the facts before us the error, if any, is immaterial and not prejudicially erroneous.