City of La Crosse v. Town of Melrose

| Wis. | Feb 15, 1868

Paine, J.

This action was brought to recover the expense of supporting a pauper, who, it was claimed, had a legal settlement in the town. It is objected that the judgment cannot be sustained for the reason that the action should have been brought in the name of the mayor and common council of the city, against the supervisors of the town. This position is based upon the provisions of sections 4 and 27, chap. 34, R. 8. Strictly speaking, the action should have been so brought. These sections, considered in connection with section 64, chap. 15, R. S., which provides that in other actions for the town the supervisors shall sue by their name of office, seem to indicate that the suit should be brought in their name. Rut the objection ought not to prevail; for it was made in this court for the first time, and it is a formal and not substantial objection. The city and the town are the real parties in interest. If the suit had been brought in the name of the supervisors, they would have been merely the representatives of the town. The judgment, if recovered, would have been enforced against the town. If, therefore, the parties go to trial on the merits, without raising this objection, the judgment, if otherwise proper, ought not to be reversed because the action is entitled as between the real parties in interest, instead of between their representatives.

It is objected, also, that the notices given by the city to the supervisors of the town were insufficient. Two notices were given. The first was directed to the supervisors of the town of Bristol. This was formerly the name of the town of Melrose, but it had been changed. The notice was actually served on the supervisors of the town of Melrose. If it was otherwise proper, this defect should not vitiate it. It being served upon the proper persons, and containing the necessary information, the fact that the former name of the town was used could not have misled any one. And where a notice conveys the necessary information to the proper' person, it is good,- even though there are some inaccuracies in it. But a later notice was given, addressed to the supervisors of Melrose, thus remedying the defect, if there had been any.

The notices were properly signed by the mayor on the part of the city. It was objected in the court below that the city could not maintain the action, not because it should have been in the name of the mayor and council, but because the law applied only to towns, and did not extend to a city at all. This objection was properly overruled: and it was not contended here by the counsel for the appellant, that the mayor and council of the city did not succeed, to all the duties and rights of the supervisors of towns in respect to the poor. This being so, and the mayor being the chief executive officer of the city, his signature is sufficient to authenticate such a notice in behalf of the city.

Ror are the notices defective in substance. Certainly the last one contains all the information that the statute directs to be given. It is objected to because it describes the pauper as having a “ residence,” instead of a “ settlement,” in the town. Undoubtedly there is a distinction. And if this notice were a pleading, it might be defective if it used the word “residence” only, where the object was to show a legal settlement. But the notice was not a pleading. Its object was merely to convey certain information to the supervisors of Melrose. That information was, that the pauper was in the city, being supported by it, and that the city claimed that the town of Melrose was liable for her support, and requested to have her • removed. All this is fully apparent from tbe notice. No intelligent person could misunderstand it for a moment. And such proceedings ought not to be vitiated because théy do not give the desired information with the precision that would be necessary in stating a cause of action. There is no reason for applying to such a notice, under our statute, the strict rule applied by the Massachusetts cases to such notices under the statute of that state, because that made the notices conclusive upon the town notified, of all the facts stated, unless the notice was denied within a limited time. Under such a statute, there lyould be great reason for saying that the facts must be stated with legal precision. But the notice, under our statute, can have no such effect. It stands upon the general rules applicable to notices. And in regard to them the law. is well settled as above stated — that if they convey the necessary information, they are not vitiated by formal inaccuracies, which could not mislead.

There was no error in refusing the instruction asked by the defendant, that if the city waited an unreasonable time before giving the notice, it could not recover for expenses incurred before notice. The statute prescribes no time within which the notice shall be given. And in the absence of such a provision, we think there is no limitation except the general statute of limitations.

By the Court. — The judgment is affirmed, with costs.