#### Seifen, Respondent, vs. City of Racine, Appellant.

*September 13*

October *9, 1906.*

*■Judgment:*Res judicata: *Amendment of pleading: Immaterial error: Officers: Policemen: Attempted removal: Validity of appointment: Abandonment of office: Right to salary.*

1. A judgment against the validity of the summary removal of a policeman from office, rendered in *certiorari*proceedings wherein no question as to his original appointment was considered, does not render the validity of such appointment *res judicata.*

*3442. Refusal to allow a proper amendment of an answer was not a prejudicial error, where evidence was admitted as though the amendment had been made; and on appeal it will be deemed to have been made.

3. The evidence in this case — showing, among other things, that plaintiff performed the duties and was paid the salary of a policeman for a certain period; that he had theretofore, after examination by the police commission, been placed upon the eligible list; that a certificate approving his appointment, executed for the commission by its secretary, had been filed with the city clerk; and that he had duly qualified before entering the service — is *held*sufficient to show due appointment to the office of policeman.

4. Upon receiving notice of removal from office, believing he had been legally discharged, a policeman delivered to the city such articles of property as it had furnished to him for use in the performance of his duties, but upon obtaining advice of counsel that the attempted removal was invalid he commenced proceedings to test its validity. *Held,*that he had not acquiesced in the removal or surrendered or abandoned the office.

5. Shortly after an attempted removal of plaintiff from the office of policeman, other policemen were appointed, but to none of such new men were assigned the duties which plaintiff had performed, such duties being performed by an older member of the force. The salary attached to plaintiff’s office was $65 per month, and the new appointees received each $55 per month. *Held,*that no other person was performing the duties and receiving the emoluments of the office to which plaintiff had title, and that for the time during which he was unlawfully prevented from performing such duties he was entitled to recover the salary of the office.

Appeal from a judgment of tbe circuit court for Racine county: E. B. BeldeN, Circuit Judge.

*Affirmed.*

An action to recover tbe salary wbicb plaintiff alleges is due bim as policeman of tbe city of Racine from February 1, 1905, to July 1, 1905, at tbe rate of $65 per month. It appears that plaintiff bad been performing tbe services of a policeman for tbe city from March 1, 1900, to tbe 1st day of February, 1905, under an alleged appointment, and that be bad received tbe compensation of a policeman. On January 23, 1905, by letter from tbe secretary of tbe police and *345'fire commission, plaintiff’s resignation was requested, to take ■effect tbe ensuing February 1st. ITe disregarded tbe request. On January 28tb be received notice, signed by tbe members •of tbe commission, that be bad been removed from tbe police ■department, and that tbe removal would take effect February 1st following. He thereupon left bis keys and other belongings of tbe city at tbe police office, in tbe belief that they ■could be demanded of him after tbe notice given him. He was at that time of tbe opinion that be could not demand to be kept in tbe actual employ and tbe performance of tbe service of policeman. He thereafter consulted counsel and, pursuant to their advice, in May, 1905, be commenced *cet-■tiorari*proceedings to test tbe legality of tbe commission’s .action in summarily removing him. On July 5, 1905, tbe •court decreed that tbe attempted removal of tbe plaintiff from bis office of policeman was illegal, and declared tbe action for naught. Other proceedings were taken, and by this second proceeding plaintiff was regularly suspended and removed by tbe commission from and after July 1, 1905. Plaintiff was not assigned to perform any police duty from February 1 to July 1, 1905. Tbe police and fire commission and tbe chief of police appointed policemen immediately after plaintiff bad been notified of bis summary removal on January 28, 1905, and they qualified and entered upon tbe performance of police duties for tbe city. 'The persons so appointed received a compensation of $55 per month. So far as appears, no person was appointed in tbe plaintiff’s place, and tbe services on tbe particular beat which plaintiff bad performed on and before be received tbe notice on January 28,• 1905, were thereafter performed by a member of tbe police force who bad been in tbe service for a considerable time before plaintiff was notified to quit tbe ■service.

Tbe court found that from February 1 to July 1, 1905, plaintiff was a duly appointed and qualified police officer of *346the defendant city; that the emoluments attached to the office consisted of a salary of $65 per month; that the attempted removal of the plaintiff from this office by the police and fire commission on January 28, 1905, had been declared by judgment of the court to be illegal and ineffectual, and that such judgment was still in force; that no person had been appointed to fill the office, and that from February 1 to July 1, 1905, no person occupied the office of policeman held by this plaintiff; that the action of the city, through its chief of police and the police and fire commission, prevented plaintiff from performing the actual service of this office for this period; and that plaintiff at no time had resigned, surrendered, or abandoned the office so held by him. Upon this-state of facts the court held that plaintiff was entitled to-judgment for the amount of the salary attached to the office,, with interest from the time the monthly instalments were due and payable. This is an appeal from such judgment.

For the appellant there was a brief by *E. B.*Burgess, city attorney, and *M. E. Walicer,*of counsel, and oral argument by *Mr. Wallcer*and *Mr. Boy Burgess.*

For the respondent there was a brief by *Thompson & Har*vey, attorneys, and *O. G.*Giitings, of counsel, and oral argument by *Fulton Thompson.*

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*347moval 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.

*348It 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*349tempted 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.