Becker v. Green Cnty.

• Decision Date: 10 January 1922
• Citation: 186 N.W. 584,176 Wis. 120
• Parties: BECKER v. GREEN COUNTY.
• Court: Wisconsin Supreme Court

176 Wis. 120

186 N.W. 584

BECKER

v.GREEN COUNTY.

Supreme Court of Wisconsin.

Jan. 10, 1922.

On rehearing. Affirmed without prejudice to claim for salary.

For former opinion, see 184 N. W. 715.

PER CURIAM.

Upon a motion for rehearing the appellant calls attention to the fact that, although he was convicted on August 6th and sentenced on August 18th, nevertheless he continued to act as county judge until the 20th day of September, at which time his successor qualified and assumed the office; that he was paid the salary of the office up to and including August 31st; that he is at least entitled to the salary for the period between August 31st and September 20th, during which time he actually occupied the office. This contention is made for the first time upon the motion for rehearing. Whether appellant is entitled to the salary of the office during such 20-day period depends upon special considerations not raised or involved in the theory upon which the case has been prosecuted. The cause of action set out in the complaint is for the salary of the office during the entire period for which it was withheld from appellant. The theory upon which he claimed to have been entitled thereto is fully reviewed in the opinion. His right to the salary during the 20-day period involves considerations distinct from those heretofore urged upon the county board, the circuit court, or this court, and a claim which was not presented to the county board.

The cause of action set out in the plaintiff's complaint is probably sufficient as a matter of pleading to enable him to recover his salary for any part of the period covered thereby to which he may lawfully be entitled. He should, however, have called to the attention of the trial court as well as the county board the distinct nature of his claim for salary for the 20-day period. As the claim was presented to the county board, and as the case was prosecuted, neither the trial court nor the courty board had an opportunity to pass upon the question now raised. It is well established that matters not called to the attention of the court and opposing parties during the trial, so that in the determinationof the issues they may be given due consideration, are effectually waived and cannot thereafter be urged as grounds for a new trial or for a reversal of the judgment on appeal. Congar v. Chamberlain, 14 Wis. 258;Harrington v. Downing, 166 Wis. 582, 166 N. W. 318. An application of this rule in its full vigor...