LexisNexis(TM) = Academic

Draper, Trustee, &c. v. Cambridge.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF INDIANA
20 Ind. 268; 1863 Ind. LEXIS = 103

May Term, 1863, = DecidedPRIOR HISTORY: [**1] APPEAL from the = Marion=20 Circuit Court.

DISPOSITION: The = judgment is=20 reversed, with cost.

HEADNOTES: = Common Schools=20 -- Pleadings. -- In an application for a mandate to enforce the = admission of a=20 person to a common school, the complaint should affirmatively show that = the=20 applicant is under twenty-one and not under five years of age, and = unmarried,=20 and neither a negro nor mulatto, nor the son or daughter of a mulatto, = or such=20 complaint will be defective on demurrer.
COUNSEL: N. B. & C. Taylor, for the appellant.
J. A. Beal, for the appellee.
JUDGES: Worden, J.

OPINIONBY:=20 Worden

OPINION: [*268] = Worden,=20 J.--Complaint by the appellee against the appellant for a writ of = mandate.
Demurrer to the complaint overruled and = exception.
Such further proceedings were had as that = final judgment=20 was rendered for the plaintiff.

Among the = errors=20 assigned, is that of overruling the demurrer to the complaint; which is = as=20 follows:

"The plaintiff complains of the = defendants,=20 and says that he is a resident in school district No. 6, in Pike=20 township, in said county; that the said defendant, James Draper, = is the=20 acting trustee of said district, and that the said John Hughes is = now=20 teaching a free public school in said district, employed = [*269] by=20 said Draper; that the plaintiff, on the day of = October, 1861, being under the age of 21 years, and being neither = a negro=20 nor mulatto, nor the son of a mulatto, demanded admittance into said = school as a=20 scholar; that said defendants refused to admit said John = Cambridge to the=20 privileges of said school, and refused to [**2] recognize him = as a=20 scholar in said school, to his damage 500 dollars. Wherefore the = plaintiff prays=20 that a writ of mandate issue, by order of this Court, to compel said = defendants=20 to admit said John W. Cambridge as a scholar in said school, or = show=20 cause why he should not be admitted, and for such other and further = relief as is=20 just and right."

No further notice seems to = have been=20 taken of Hughes, and judgment was rendered against Draper = only.
We think Draper's demurrer to the = complaint should=20 have been sustained. Only unmarried persons, between the ages of 5 and = 21 years,=20 are to be enumerated and have the benefit of the common schools. Acts = 1861, p.=20 71, sec. 12. The complaint should have averred that the plaintiff was = over 5=20 years of age, and unmarried; or at least it should have averred that he = was=20 entitled to admission, as a scholar, into the school; neither of which = is done.=20 It was as necessary to be shown that the plaintiff was over 5 years of = age, as=20 it was that he was under 21; and that he was unmarried, as that he was = neither a=20 negro, mulatto, nor the son of a mulatto. It does not appear from the=20 allegations that the plaintiff was entitled to admission = as [**3] a=20 scholar into the school, and hence no ground is shown for the issuing of = the=20 mandate.

The case of The Board of = Commissioners of=20 LaGrange Co., v. Cutler, 7 Ind. 6, is conclusively in point, = that=20 facts must be stated to show that the party is entitled to the = mandate.
Per Curiam.--The judgment below is = reversed, with=20 cost.

	Home =20 Sources =20 How=20 Do I? Site=20 Map What's New Help &nb= sp;=20