Jacobberger v. School District No. 1

235 P. 277, 114 Or. 575

Opinion

McBRIDE, C. J.

The demurrer in this case should have been sustained. There is no allegation in the complaint that the plaintiff’s claim herein was ever presented to the school board for audit, and such presentation has been distinctly held to be necessary: Barrow v. School Dist. No. 8, 83 Or. 272 (162 Pac. 789). The complaint is fatally defective in this respect.

It is urged that this is cured by evidence introduced by the plaintiff tending to show that such presentation had been made, and it is urged that, this evidence having been introduced, the alleged omission is cured by the verdict. The introduction of such testimony was strenuously objected to by the defendant, and the lack of a necessary allegation in the complaint cannot be cured by a verdict based upon evidence improperly admitted.

The judgment will be reversed and the cause remanded to the court below, with instructions to sustain the demurrer.

Reversed and Remanded With Directions.

Rehearing Denied.

Burnett, Rand and Coshow, JJ., concur.