129 Wis. 343 | Wis. | 1906
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
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.
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
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.