Servente v. Murray

Appellant Servente served as a fireman and subsequently in several capacities as a member of the police department in the city of Alameda. In 1929 lie was dismissed by the city manager from all employment in the city of Alameda. In the following year proceedings were commenced against the members of the pension board in the form of a petition for a writ of mandate. The petition alleged that the removal of Servente was accomplished by the arbitrary action of the city manager without notification or the benefit of a hearing. The answer set forth that petitioner had been removed and dismissed, but that the removal was not accomplished arbitrarily and that the refusal of the pension board to grant a pension to Servente was in accordance with the provisions of the pension ordinance.' Judgment in that proceeding was rendered against petitioner. The present appeal is from a subsequent judgment rendered against the petitioner Servente for a writ of mandate seeking reinstatement in the police department together with back pay from the date of his discharge.

As a fifth and separate defense to the cause of action set forth in the petition respondents alleged: “That, in that certain action heretofore pending in the Superior Court of the State of California, in and for the County of Alameda, entitled, ‘Louis Servente, Petitioner, vs. G. E. Hickoh, Victor L. Schaezer and Homer Dallas, as members of the Pension Board, of the City of Alameda, County of Alameda, State of California, Respondents,’ No. 113445, judgment and decision was duly and regularly made and rendered finding and determining that, on September 23, 1929, C.

Pleas of res judicata and estoppel by judgment when presented by proper pleading are defensive matters. (Viti min Milling Corp. v. Superior Court, 1 Cal. (2d) 116 -121 [ 33 Pac. (2d) 1016 ].) There is a distinction between a second suit on the same cause of action when the judgment is a complete bar, and a suit on a different cause of action where judgment in the first proceeding may be advanced as an estoppel as to matters actually determined. A judgment is conclusive between parties and their successors upon matters directly adjudicated. (Code Civ. Proc., sec. 1908.) Appellant contends that in the prior proceeding the question of petitioner’s dismissal was not directly adjudicated and relies primarily upon the case of Freeman v. Barnum, 131 Cal. 386 , 389 [ 63 Pac. 691 , 82 Am. St. Rep. 355 ], wherein the court said: “But this estoppel in actions upon a different cause of action only extends to matters actually litigated and determined, and not to questions involved and defenses which might have been, but were not made.” In the prior proceeding the answer admitted the allegations relative to the dismissal of the petitioner. It is true that when allegations of a complaint are admitted they cease to be controversial and require no determination. The entry of a judgment is essential, however, to a final disposition of the action. A judgment is entered upon the decision rendered by the court. A decision is a compilation of findings of fact and conclusions of law. An admission in the pleading warrants a finding in conformity thereto. (Bloomquist v. Haley, 204 Cal. 251 , 252 [ 268 Pac. 367 ].) When the history of the proceedings is

To support the plea of res judicata it is necessary to prove that there was an identity of parties involved in the two actions. Section 1910 of the Code of Civil Procedure provides: “The parties are deemed to be the same when those between whom the evidence is offered were on opposite sides in the former case, and a judgment or other determination could in that case have been made between them alone, though other parties were joined with both or either.” This rule is subject to certain legal principles appertaining thereto. The successors of parties in interest or agents will sometimes be deemed to be the identical parties if the determined question

Appellant contends that the sole authority of the respondents in the first proceeding was in relation to pensions, and that the only matter here in controversy is whether or not the petitioner is, de jure, a police officer, and that the

Appellant proceeds one step further and contends that there was no determination of the question of dismissal involving the public, but involving the members of the pension board only, individually in their private capacities; that the capacities of the respondents in the first proceeding were derived solely from the provisions of the pension ordinance and were distinct and complete in themselves. The answer to this argument is that, irrespective of the derivation of the pension board’s power, the judgment inured to the benefit of the municipality. The pension board had no power to dismiss appellant from the department, but having been sued it had the right to admit or deny any allegation of the petition relative to his dismissal by another branch of the municipal government. No specific statutory authority is necessary to institute mandamus procedings except as contained in the provisions regarding mandamus. If an alleged aggrieved party sues the members of a board or commission and a vital issue is determined concerning the rights and interests of the petitioner involving a political subdivision, the petitioner cannot thereafter claim that only the rights of the members of the commission in their private capacities were involved and that there was no determination of the rights of the public. If such a judgment was not effectual against or in favor of a political subdivision there would be no end to litigation. (Suisun L. Co. v. Fairfield School Dist., 19 Cal. App. 587 -594 [ 127 Pac. 349 ].) In the first proceeding the pension board represented the public interest, and if the judgment was upon the merits it is immaterial under such circumstances that the form of the action was an application for a writ of

The difficulty in this matter is that in the first petition for a writ of mandate the then attorney for petitioner proceeded upon the theory that the dismissal of Servente was a valid dismissal. The attorney in the present petition for a writ of mandate contends that the order of dismissal was utterly void in that the city manager solely on his own motion, without notice or opportunity to be heard, dismissed appellant from the police department; that the allegation of dismissal in the first petition was inadvertently made, and mistakenly admitted in the answer; that in fact appellant was not dismissed. This was a matter that should have been determined upon the original proceeding. In Caminetti v. Board of Trustees, supra, petitioner obtained a writ of mandate to establish her right to teach in the Jackson Union High School in Amador County. The trustees ignored the writ and refused to reinstate the petitioner in her position whereupon a second writ of mandate was issued to compel payment of salary. The defendants in their answer to the second petition set forth that the certificate of qualification of the petitioner as a teacher was not on file in the office of the county superintendent of schools. On appeal the court said, at page 356 [1 Cal. (2d)] : “It is apparent that this defense, and the various denials found in the answer, are disposed of by the application of the doctrine of res judicata. By its judgment in the first mandamus proceeding the court in October, 1931, determined that plaintiff was entitled to teach, and was ready, able and willing to do so, during that school year. The defense that she had disqualified herself by removal of her credentials in May was available at that time, and hence, whether or not

The question of appellant’s dismissal and whether or not it was accomplished by the arbitrary action of the city manager was necessarily an issue involved in the pension proceeding and was actually determined. Any error in the pension case would have been reversible on appeal. (Vitimin Milling Corp. v. Superior Court, 1- Cal. (2d) 116-121 [ 33 Pac. (2d) 1016 ].) The issue of dismissal involved in this proceeding having been determined by a prior judgment, no issue of fact of dismissal remains to be litigated. If petitioner was dismissed lawfully, he is not entitled to back salary from the date of dismissal. The court’s decision that the petitioner was removed or dismissed for cause necessarily involved a determination that the order of dismissal was lawful. Matters put in issue, although not expressly mentioned in the judgment, if determined by necessary implication, are conclusive on parties to the action and persons in privity with them. This case comes within the general rule that requires parties to rest upon one decision. (Price v. Sixth District Agricultural Assn., supra.) The second proceeding was res judicata. It is therefore unnecessary to consider respondents’ additional affirmative defenses of laches, and that the cause of action was barred by the statute of limitations.

The judgment is affirmed.

Tyler, P. J., and Cashin, J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 23, 1936.