Seifen v. City of Racine

Siebeceeb, J.

The defendant asked leave to amend its-answer, at the beginning of the trial of the case, by denying that plaintiff had ever been appointed a policeman for the defendant city as alleged in the complaint. The court held its ruling on this motion in abeyance, but permitted proof to-be received as if an issue had been raised as to this question, and at the time of making its decision held the amendment unnecessary, upon the ground that this issue was covered by the judgment in the certiorari proceeding. That proceeding, however, does not show that any question was adjudicated except the one as to the sufficiency of the proceeding for the re *347 moval of tbe plaintiff from tbe office of policeman, instituted January 28, 1905, by tbe police and fire commission. Tbe question of plaintiff’s original appointment to tbe office seems not to bave been tried or considered in that proceeding, nor was it necessarily involved in passing upon tbe question then expressly determined by tbe court. Under these circumstances tbe judgment in that case upon that question is not res adjudicaba, in tbis case. Lindemann v. Rusk, 125 Wis. 210 , 104 N. W. 119 , and cases cited. Defendant’s amendment should bave been allowed; but, since tbe proof was received as if tbe issue bad been raised, no prejudicial error was committed, and tbe answer will be deemed so amended on tbis appeal. Gill v. Rice, 13 Wis. 549 ; Nelson v. Campbell & C. Co., ante, p. 82, 101 N. W. 297 .

It is urged that tbe evidence does not show that plaintiff was appointed a policeman as alleged. It appears that bo entered tbe city’s service as a policeman on tbe 2d day of March, 1900, that be performed tbe duties of that office until February 1, 1905, and that be was paid tbe salary attached to tbe office. It is contended that bis appointment was not valid because tbe police and fire commission failed properly to approve it. Their action is evidenced by a certificate reciting that tbe board approved tbe appointment. Tbis was executed for tbe board by tbe secretary of tbe commission and was filed in tbe office of tbe city clerk. It also appears that, after an examination to test bis qualification, plaintiff bad been placed on tbe list of tbe board as eligible to appointment in tbe service; that be duly qualified before entering upon tbe service by filing tbe proper oáth and bond required by law. No evidence adduced impeaches tbe inference, from these acts, that tbe board took tbe steps required of it for plaintiff’s appointment as a police officer. We must bold that tbe evidence sufficiently shows that plaintiff was duly appointed to tbe office at tbe time be entered upon tbe service.

*348 It is claimed that plaintiff resigned, surrendered, or abandoned the office on February 1, 1905. This claim is predicated upon the fact that he acquiesced in the notice and demand of the chief of police and the commission of his removal from office, and surrendered to the city whatever articles of property he had in his possession furnished him by the city for use in the performance of his official duties. The evidence is clear that plaintiff was induced to deliver these articles in the belief that the city officers had properly discharged him from the service. Upon seeking the advice of counsel and being informed that the action taken was ineffectual, he protested against such action by instituting proceedings to set it aside and declare it for. naught, and he thereby asserted his title to the office. The court properly held upon the evidence that he did not acquiesce in the removal, or surrender the office, and that he did not abandon it.

It is further contended that the court erred in finding that the duties of the office which plaintiff had held were not in fact performed and exercised by another person from the time plaintiff ceased performing them on February 1, 1905. It is averred that another person was in fact appointed to the office, and that he performed the services and received the emoluments attached to it for the period for which plaintiff-now seeks to recover. Does the proof show that another person was appointed to the office held by the plaintiff, and that he performed the services and received the emoluments attached to it? . The evidence material to the inquiry is that the police and fire commission and the chief of police selected several persons eligible to appointment in the police service of the city shortly after January 28, 1905, when they attempted to remove plaintiff and prevented him from performing the service, and- that these persons entered upon and performed police duty under the direction of the chief of police, but that none of them were assigned to the performance of the duties which devolved on plaintiff before his at *349 tempted removal from office, and tbat one of tbe policemen in tbe service before January 28, 1905, was assigned to perform tbe duties wbicb plaintiff bad performed before February 1, 1905. It also appears tbat plaintiff’s office bad attached to it a salary of $65 per month, and tbat tbe persons appointed to tbe service from February 1, 1905, received a compensation at tbe rate of $55 per month. This evidence warrants tbe inference, as held by tbe trial court, tbat no specified person was performing tbe duties and exercising tbe functions of, and receiving tbe emoluments attaching to, tbe office to wbicb plaintiff bad title up to July 1, 1905. Under this state of tbe facts there is no basis for the claim tbat another person performed tbe duties and exercised the functions of tbe office to wbicb plaintiff bad title, and hence there was no officer de facto who can be deemed to have received tbe emoluments of tbe office.

These considerations dispose of all tbe questions involved on this appeal. "We must bold tbat tbe court properly adjudged tbat plaintiff held title to tbe office of policeman from February 1 to July 1, 1905, and was entitled to its emoluments.

By the Gourt. — Judgment affirmed.