Cairns v. O'Bleness, 40 Wis. 469

Cairns v. O'Bleness

40 Wis. 469 | Wis. | 1876

Ryan, C. J.

This action might, perhaps, have been brought in the name of the town. Beaver Dam v. Frings, 17 Wis., 398. But sec. 64, ch. 15, E. S., authorizes the supervisors of the town, by their name of office, to prosecute actions upon bonds given to them. This clearly means the supervisors of the town, eo nomine, without use of their personal names, as in Supervisors v. Kirby, 25 Wis., 498. That is really but another way of designating the town itself as plaintiff in the action. And the insertion of the personal names of the supervisors is improper; but ought perhaps to be disregarded as surplusage, as in Bullwinkel v. Guttenberg, 17 Wis., 583; certainly upon a general denial. Dutcher v. Dutcher, 39 Wis., 651. And the action, being in the right of the town only, could not be affected by a change of officers. Even the death of all the persons improperly named as supervisors would *476leave the action pending in the name of the supervisors of the town, as it should have been originally brought. La Crosse v. Melrose, 22 Wis., 459. It is properly the action of the corporation, whoever its officers may be. We take it that an information by the attorney general or a district attorney would be equally unaffected by his death or removal from office, whether or not his own name appeared in the body of the information. Sec. 11, ch. 135, R. S., may probably require a change of the plaintiff’s name upon the death or removal of an officer or trustee prosecuting the action; but that section plainly relates to actions brought in the personal names of officers or trustees, and not to actions brought by officers in the name of their office.

The complaint clearly avers a conversion of the sum in controversy by the treasurer during his first term of office; and we think that the evidence before the referee supports the complaint. It sufficiently appears that the treasurer did not hold the. sum, officially, as money of the town, when he entered on his second term. And the complaint and proof are sufficient to hold his first official bond for the sum. Vivian v. Otis, 24 Wis., 518.

There appears to be no doubt of the power of the court to order the first reference. Sec. 25, ch. 132, Tay. Stats. The issue appeared to involve a long account, and the reference was proper. Supervisors v. Dunning, 20 Wis., 210.

The referees made a report, and both parties moved for judgment upon it. The court below thereupon made an order referring the cause de novo to one of the former referees. This was equivalent to an order for a new trial, after verdict, and must be taken as setting aside the former report. We cannot doubt the power of a circuit court to do this, in a proper case. Had the bill of exceptions preserved the evidence reported by the first referee, the question might arise here, whether the order was properly made. Yates v. Shepardson, 27 Wis., 238. But as the evidence is not before us, *477we are unable to determine tire question. The presumption is that the order was made on sufficient grounds. And we surely could not determine that the further disposition -of the cause by the court below is affected by an order setting aside the report, not brought before us in a manner enabling us to determine whether it was erroneous or not. The failure of the appellants to incorporate the evidence in their bill of exceptions, to support a review of the order, must be taken as a submission to'the order.

The orders recommitting the report on the second reference, for correction by the referee, were manifestly within the power of the court below. Sec. 23, ch. 132, E. S. They are equivalent to directions to a jury to correct an imperfect verdict, and appear to have been properly made.

There are several exceptions to evidence, which we need not consider; because there is ample evidence, taken without exception, to sustain the findings of fact.

It appears that the treasurer collected the tax without a warrant as required by the statute. But he collected it for the town, vi/rtute ofioti; and, having done so, could not retain the money as his own, upon the ground that his authority was imperfect. He might have declined to collect the tax without warrant; having collected it, upon the tax roll, for the town, he could not be heard to claim that he collected it for himself.

The trial before the referee, and his report, were equivalent to trial by jury and verdict. And the application to change the venue came too late. Swineford v. Pomeroy, 16 Wis., 553.

It was improper to revive the action upon the death of William Bremner, one of the defendants, against his administratrix. Jones v. Keep, 23 Wis., 45. The appeal is a joint one; hut this court has power to reverse or affirm as to any or all of the parties before it. Sec. 7, ch. 264 of. 1860.

By the Gowt. — The judgment of the court below is affirmed, *478except as against the appellant Carolme A. JBremner, admin-istratrix, etc.; and as to her, it is reversed.