On Motion for Rehearing.
The contention is made in appellee’s motion for rehearing that this court is inconsistent in overruling the assignments relating to exceptions to the plaintiff’s pleadings, and then sustaining the assignment wherein it was contended that the facts showed abandonment of the office. In order to show this supposed inconsistency to exist appellee takes as true the contentions made by appellant in regard to the pleadings of appellee. We were fairer to appellee and took his pleadings as they actually existed, and not appellant’s conclusion, in regard to the effect which should be given to particular paragraphs thereof, and, applying the special exceptions, held that the pleadings were not subject to such exceptions. Appellee pleaded with great care that Walker forcibly took possession of the office and the property in plaintiff’s possession, and that the delivery of the property by him to Walker was compulsory, and that he protested against the same, and never abandoned said office. We held that such allegations did not show abandonment and overruled the special exceptions. But the undisputed evidence showed that plaintiff made no protest, that the delivery was not compulsory, and that Walker did not forcibly take possession of the office and the property appertaining thereto, but, on the contrary, plaintiff went with Walker and turned over to him all the property, introduced him, as his successor, to all the men working in his department, and applied for and received pay for the time spent by him in turning over his office and the property to Walker. There is nothing inconsistent in sustaining the overruling of the exceptions to plaintiff’s pleadings which negative all idea of acquiescence on the part of plaintiff, and sustaining the assignment of error directed at the evidence which wholly fails to sustain such allegations.
Appellee stresses the fact that Walker’s appointment reads “park inspector,” and seems to think that the statement of Fries establishes conclusively that no mistake was made in this matter. Fries testified that it did not occur on account of any clerical mistake made by him, but it is evident that it did occur on account of a mistake made by some one. Neither the mayor nor council was attempting to create a new office, but Walker was put in charge of the office of park commissioner, received the salary of said office, and discharged the duties thereof, and in his amended original petition appellee alleges that Walker forcibly, under order of the mayor, took imssession of the office of park commissioner, and ousted plaintiff therefrom. This pleading is strangely inconsistent with the theory now advanced that plaintiff merely gave up the property to a person appointed to a different office. Appellee, at the time he filed his pleadings, appeared to regard the question of abandonment of the office as a very vital one, but now contends that, regardless of his conduct as shown by the evidence, which flatly contradicts his pleadings, he did not abandon the office because a mistake was made in naming the office in Walker’s appointment, commission, and oath of office. He contends that the question of abandonment is one of intent, and yet seeks to protect himself from his voluntary acts, which show that intent, by invoking the aid of something which it is clear he did not know at the time of his acts, nor when he filed his original petition, namely, that the office was designated as that of “park inspector” instead of “park commissioner” when Walker was appointed.
*1030He contends that, as a resignation would not be effective until a successor was appointed and qualified, abandonment, which is a species of resignation, could not take place because of the mistake made in designating the office to which Walker was appointed. We are cited to no case which holds that an officer who resigns could recover salary for a long period of time because of irregularities in the appointment of his successor, and we do not believe that had appellee handed in his resignation he could have collected salarj' for nine months in which the duties were being performed by Walker, even though an error was made in designating the office to which Walker was appointed. The cases relied upon hold that an officer whose resignation is accepted is not released from the discharge of the duties and responsibilities of his office until his successor is appointed and qualified. The public has a right to have the duties of the office discharged, but when another person takes charge of the office and performs the duties thereof, and his occupancy of the office is of such character as to protect the public, we see no reason why irregularities in making the appointment, though of a eharacter to prevent his recovery of the salary by suit, should inure to the benefit of the man who has given up the office and entitle him to recover unearned salary.
Appellee contends that additional testimony can be procured, that the aldermen with whom he conversed can be put upon the stand, and therefore the case should he remanded instead of judgment being rendered by this court. Appellee abandoned the office to Walker according to his own testimony and according to the testimony of Walker, which he did not dispute, although having ample opportunity to do so. After abandoning it he failed to take any steps to recover the office or to prevent the payment of the salary to Walker, and did not even protest to the mayor himself,- or notify the mayor or the council that he intended to claim the salary. He does not contend that he even told any alderman he would claim the salary, but he did tell some of them he was willing to take the office. His plea that the mayor was “awfully busy at the time” is unworthy of attention. Surely he could have seen the mayor if he had tried, but he does not contend that he ever demanded an audience. Nine months passed by without a verbal or written protest by him to either the mayor or the council. He waived all irregularities in his discharge and in the appointment of his successor, and, under his own testimony, should be estopped from recovering salary, and we see nothing to be gained by having the aldermen with whom he conversed either corroborate or deny his testimony that he told them he was willing to take the office.
Appellee has requested that additional findings of fact be made. We regard this as unnecessary. In fact, most of the additional findings requested to be made relate to matters not shown in the statement of facts, but based upon pleadings and charter provisions.
Tho appellee’s motion for rehearing, supplemental motion for rehearing, and motion to correct findings of fact, are overruled; also the appellant’s motion for rehearing.