53 Wis. 527 | Wis. | 1881
The giving of the notice of the injury, and of the time and place where it occurred, is alleged in the complaint, as required by section 1339, R. S. In addition to such notice, the statute also provides that “ no action upon any claim or cause of action for which a money judgment only is demandable, shall be maintained against any town, unless a statement of such claim shall have been filed with the town clerk, to be laid before the town board of audit, nor until ten days after the next annual town meeting thereafter.” Section 824, R. S.
Is this section applicable to the case at bar? It first made its appearance in the present revision. The reasons given by the revisers for its adoption are stated thus: “New section, to enable towns to have the opportunity to exercise the power conferred on them at town meetings to vote to settle claims. It is similar to the provision in favor of counties, and is necessary to enable towns to save needless costs, and often to avoid being forced into litigation which they might by judicious action escape.” Revisers’ Notes, 71. With that construction placed upon it in advance by the revisers, it was adopted by the legislature. The construction recently placed upon this section by this court is in strict harmony with that given by the revisers. Wright v. Town of Merrimac, 52 Wis., 466. As the language of that section is substantially like section 676, R. S., the opinion in Wright v. Town of Merrimac may, on casual reading, appear to be inconsistent with Stringham v. Winnebago Co., 24 Wis., 594, and Kellogg v. Winnebago Co., 42
In Susenguth v. Town of Rantoul, 48 Wis., 334, it was held that the notice of injury required by section 1339 must be alleged in the complaint; and a general demurrer to a complaint not containing such allegation was there sustained. The reasoning of that ease, thoughjunder a different statute, seems to be equally applicable, as the language of the two sections in that regard is in effect the same. See also Plum v. Fond du Lao, 51 Wis., 393. We therefore hold that the com- • plaint in this action against the town for injury by reason off the insufficiency of the sidewalk is fatally defective, because ■ it does not allege that the statement required by section 824;. E. S., had been filed with the town clerk, and that such defect may be reached by objecting to all eyidence under the complaint at the trial. This decision may not be in strict harmony with all that is said in the opinions in Sheel v. Appleton, 49 Wis., 125, and Benton v. Milwaukee, 50 Wis., 368; but the-question in each of those cases was, whether the circuit court 'could get jurisdiction at all, except through and by virtue off an appeal from the determination of the common council, and it was, in effect, held that it might by consent of both parties; that is to say, where the action is brought originally in the circuit court, and no objection is made on the part of the defendant by demurrer or answer, none should be entertained at the trial. Had not the complaint in this action been defective
This being so, and for the reasons given, the judgment of the circuit court must be affirmed.
By the Court.— Judgment affirmed.