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Seymour State Bank v. Rettler, 166 Wis. 450.

SEYMOUR STATE BANK, Appellant, vs. RETTLER, Respondent.

December 4, 1917-January 5, 1918.

Appeal: Reversal of judgment: Remanding for “further proceedings:" Power of trial court to allow amendment of pleadings: Appealable orders.

1. Where by the judgment of the supreme court on a former appeal the judgment of the circuit court was reversed and the cause remanded "for further proceedings according to law," the case, upon being remitted, stood upon the pleadings as if no judg ment had theretofore been rendered in the trial court, and that court had power to permit the answer to be amended.

2. Under sec. 3069, Stats., an order permitting amendment of the answer is not appealable.

APPEAL from an order of the circuit court for Outagamie county: EDGAR V. WERNER, Circuit Judge. Dismissed.

This action was originally brought to recover on a promissory note against John J. Rettler and Matt Rettler. Upon a stipulation which is set forth in 164 Wis. 619, at p. 620, 160 N. W. 1084, where the case is reported on a former appeal, this court reversed the judgment appealed from and remanded the case to the circuit court "for further proceedings according to law."

On March 22, 1917, the remittitur was filed with the clerk of the circuit court. May 4, 1917, the plaintiff served notice on the defendant that it would move "for judgment on the evidence, the records, the plaintiff's briefs, and the entire proceedings in the case." Francis S. Bradford, attorney for the respondent, had not asked of the court to file an amended answer, but with his brief opposing the plaintiff's motion for judgment he filed an affidavit and asked the court for an order allowing the answer to be amended. The circuit court held (1) that the appellate court did not decide whether the plaintiff's attorneys had special authority to dismiss the action on its merits; (2) that the appellate court did

Seymour State Bank v. Rettler, 166 Wis. 450.

decide that the judgment of the trial court be reversed, and the cause remanded for further proceedings according to law; (3) that if the appellate court had decided the case on its merits it would have ordered judgment for the plaintiff instead of reversing the judgment of the trial court and remanding the action for further proceedings according to law.

The circuit court ordered that the motion of the plaintiff for judgment be denied and that the motion of the defendant to file an amended answer be granted. It was further ordered that the defendant file and serve his amended answer on the plaintiff's attorney within twenty days, and that the action be placed on the calendar for further proceedings according to law, pursuant to the order of the appellate court. From this order of the circuit court allowing the defendant to amend his answer this appeal is taken.

For the appellant there were briefs by Lehner & Lehner of Oconto Falls, and oral argument by Philip Lehner and Adolph P. Lehner.

For the respondent the cause was submitted on the brief of Francis S. Bradford of Appleton.

SIEBECKER, J. It is contended that the mandate of this court on the former appeal of this case, whereby the cause was remanded "for further proceedings according to law" in the circuit court, authorized the circuit court to do but one thing, namely, to enter judgment on the record. The power of this court on appeal from a judgment or order or upon writ of error, as defined in sec. 3071, Stats., clearly contemplates that the judgment of this court be enforced in the trial court upon the filing of the remittitur. The mandate of this court on the former appeal clearly excludes a direction for entry of any judgment by the circuit court, but explicitly orders that the cause be remanded for "further proceedings," and the former judgment in the case was reversed by this After the case had been remitted to the circuit court

court.

Clune v. School District, 166 Wis. 452.

it stood upon the pleadings as if no judgment had theretofore been rendered by the trial court upon the stipulation in the case and permitted the parties, by order of the court, to frame the issues in the same manner as though the judgment which this court reversed on appeal had never been entered. Under these circumstances the competency of the trial court to permit the amendment of the pleadings seems beyond question. We are persuaded that the circuit court acted within its power in ordering the amendment to the answer. This order of the court allowing the amendment of the answer is not an appealable order within the provisions of sec. 3069, Stats., and this appeal must therefore be dismissed.

By the Court. The appeal is dismissed.

CLUNE, Respondent, vs. SCHOOL DISTRICT No. 3 OF THE TOWN OF BUCHANAN, OUTAGAMIE COUNTY, WISCONSIN, Appellant.

December 5, 1917-January 5, 1918.

Schools and school districts: Hiring of teacher: Validity of contract: Teachers' certificates: Issuance and annulment: Fraud: Review of superintendent's action: Teacher's contract: Abrogation: Destruction of schoolhouse: Recovery of agreed salary.

1. Findings by the trial court, supported by the evidence, to the effect that the school board of the defendant district met on a certain day, that all members were present, that it unanimously voted to hire plaintiff to teach the school for the term of nine months beginning on a certain day and agreed to pay him a specified sum per month, and that the contract was reduced to writing and signed by all the school officers and by plaintiff, sufficiently show a valid contract of hiring by the board, in spite of some informalities in the proceedings.

2. Under secs. 451-453, 461, 497, 497a. Stats., the issuance and annulment of teachers' certificates is placed under the control of the county and state superintendents, and in an action to recover for services in teaching school, brought against a school district by the holder of a teacher's certificate duly issued to him by the

Clune v. School District, 166 Wis. 452.

county superintendent, which certificate had not been annulled and was in full force and effect, no review of the action of the superintendent was proper; hence allegations of the answer to the effect that the certificate was procured by fraud and collusion were properly stricken out.

3. Where a teacher's contract of employment for a definite term contains no stipulation as to termination of the contract or deduction from the agreed salary in case of the destruction of the schoolhouse by fire or otherwise, no deduction can be made on that account without his consent.

4. A contract of employment made by a school district with a teacher cannot be abrogated or modified by the district without the teacher's consent.

5. Where after the destruction of the schoolhouse there was talk among the members of the school board of renting a place for the school, and the teacher was obliged to and did hold himself in readiness to comply with the terms of his contract, and, though he made some effort, he failed to obtain another position as teacher, he was entitled to recover the agreed compensation for the term for which he was hired.

APPEAL from a judgment of the municipal court of Outagamie county: ALBERT M. SPENCER, Judge. Affirmed.

This action was brought to recover for services in teaching school in the defendant's district for the period of nine months commencing on the 6th day of September, 1915, at $45 per month. The complaint alleged that the plaintiff was a duly qualified school teacher and held a certificate authorizing him to teach in the public schools in the county of Outagamie, Wisconsin. The defendant denied the allegation that the plaintiff was duly qualified and alleged, among other things, fraud and collusion in procuring his certificate, and set up the specific acts that constitute fraud and collusion.

On motion the allegations in the answer setting up fraud and collusion were stricken out. The case was tried by the court and the following findings made:

"1. That the plaintiff held a second-grade teacher's certificate duly issued to him on the 31st day of August, A. D. 1914, by the county superintendent of schools in and for Out

Clune v. School District, 166 Wis. 452.

agamie county, Wisconsin, authorizing the plaintiff to teach in Outagamie county for a term of three years from the date thereof, which certificate was not annulled and was in full force and effect, and that the plaintiff was in all respects duly qualified to teach the defendant's school during the school year 1915 and 1916.

"2. That on the 5th day of June, A. D. 1915, the school board of the defendant school district, at a meeting duly held at which all members were present, unanimously voted to hire the plaintiff, and entered into a contract with the plaintiff to teach defendant's school in said district for the term of nine months commencing on the 6th day of September, A. D. 1915, for which the defendant district agreed to pay to the plaintiff the sum of forty-five ($45) dollars per month, and the said contract was reduced to writing and signed by all members of the school board of defendant district and by plaintiff, and a copy of plaintiff's certificate to teach, together with said contract, was filed with the clerk of the defendant district as the statutes provide; and there was also signed by the school board of defendant district and plaintiff, Exhibit 'B,' and delivered to plaintiff, bearing date May 29, 1915, but was in fact signed by the school board of the defendant and plaintiff on the 5th day of June, A. D. 1915.

"3. That the electors of defendant school district at a regular meeting determined to have nine months' school, beginning the first Monday of September, A. D. 1915.

"4. That the plaintiff was at all times ready and willing to teach the school of the defendant district and was ready and willing to comply with all the conditions of his said contract in every respect, and this was made known to defendant.

"5. That after the making of said contract and before the commencement of said term, the schoolhouse of said defendant district was totally destroyed by fire.

"6. That on the 14th day of August, A. D. 1915, the school board of said defendant district held a regular meeting in conjunction with a building committee of defendant school district, at which meeting it was decided to let a contract for building a new schoolhouse for said district to the Mielke Construction Company for the sum of twenty-two hundred sixty-five ($2,265) dollars.

"7. That the schoolhouse contracted to be built was not

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