State Ex Rel. Scott v. Rooney

PER CURIAM. This action is brought under the provisions of section 2784 of the Revised Code of 1919, as amended by Law.s 1919, c. 289, to determine the right of the defendant to- hold the office of county superintendent of schools of Bennett county. The case is here on appeal from an order of the trial court sustaining a demurrer to the complaint. Appellant and respondent represent that a single question is presented; namely, whether the failure to- renew his,. “State Certificate” while in office, after having been duly elected at a general election and after having been duly inducted into office while holding a valid 'certificate of the kind and grade required by statute, disqualifies such superintendent from completing his terms of office. This question turns upon the construction of section 11 of chapter 138 of the Laws of 1931, which, in turn, requires consideration of chapter 172 of the Laws of 1919. Examination of the record, however, disclp-ses that this single question argued by appellant and-respondent is not presented by the allegations of plaintiff’s complaint. The complaint simply alleges that the 'defendant was the holder of a “First Grade” certificate. Both parties are required to abandon the- allegations of the complaint and deal with what are described as the “actual facts” in order to attempt to present the question they desire to' have- reviewed. It is elementary that a court is limited -to the allegations of a complaint upon -demurrer thereto, and that this court will only deal with'matters properly presented by the record. The o-nly matter argued not being presented' by 'the record, it follows that the order of the trial court must be affirmed. The order of the trial court is affirmed, but, because it is apparent that the situation above -described results from an ob *512 vious oversight in drafting of the complaint, the cause is remanded, with directions to permit the plaintiff to amend his complaint. ' RiU'DOEPH, P. J., and ROBERTS, WARREN, and SMITH, JJ., concur.