Commonwealth ex rel. Ferguson v. Jones , 329 S.W.2d 217 ( 1959 )

MILLIKEN, Judge.

This is an appeal from a summary judgment which refused to disqualify Floyd Jones as a member of'the Board of Education of Caldwell County, an office he had held for nearly twenty years, on the ground that he had not completed the eighth grade in school as required by KRS 160.180(1) (c), which reads:

“(1) No person shall be eligible to membership on a board of education: * ⅜ *

“(c) Unless he has completed at least the eighth grade in the common schools as shown by the records of the school in which the eighth grade was completed or by affidavits of the teacher or teachers under whom the work was completed, or unless he has the equivalent of an eighth grade education as determined by an examination held under rules and regulations adopted by the State Board of Education * *

The school records for the period of ap-pellee’s attendance failed to reveal that he graduated from the eighth grade. On the other hand, his teacher swore that he taught the appellee in the eighth grade and that the appellee completed the work. There are affidavits in the record, pro and con, as to whether the appellee finished the eighth grade. This being the case, a judgment based on the appellee’s motion for a summary judgment was improperly granted. Since thére is no stipulation or other indication in the record that the case was submitted on the present record for a judgment on the merits, we are constrained to reverse the judgment for a hearing on the merits.

The judgment is reversed.