City of Milwaukee v. O'Sullivan

25 Wis. 666 | Wis. | 1870

Dixon, C. J.

It seems to me that the answer of the defendant O' Sullivan is informal and bad in substance, and raises no issue as to the sum allowed to the estate of William Haney, deceased, by resolution of the common council. The complaint alleges the claim to have been allowed at $322.12, and admits that sum to be due. The defendant denies this, and, “on the contrary, alleges, upon information and belief, that the common council allowed the claim” at $562.62. The denial that the sum of $322.12 was allowed as charged in the complaint is immaterial, as it is obvious that the defendant does not intend to controvert an allowance of at least that sum. The material question arises upon the other allegation of the answer. The allowance by the common council, as alleged in the complaint, is matter of public record. The proceedings of the council, which is a public legislative body, are recorded, and the records open to the inspection of all persons. No person directly interested, as the defendant is, ought to be allowed to plead ignorance of its proceedings, unless under special circumstances, to be stated in the pleading. ■ The contents of the record should be matter of positive knowledge with every such person, and should be so pleaded. He is bound to take notice of the record, and presumed to know its contents, unless the contrary be shown, and sufficient excuses given. It seems to me, therefore, that this pleading is not distinguishable from that in Hathaway v. Baldwin, 17 Wis. 616, which was condemned by this court. The allegation upon information and belief, of matter which ought to be positively averred, I think is bad. It is more: it is frivolous and evasive. See also Mills v. The Town of Jefferson, 20 Wis. 50.

But, supposing I am wrong in this, and the answer to be sufficient to raise an issue as to the sum allowed, it is still insufficient to authorize a dissolution of the injunction, according to the rule as 'laid down in Smith v. The City of Appleton, 19 Wis. 468. The complaint, which is verified, charges the allowance at $822.12 as upon the knowledge of the person, the city clerk, who makes the verification. It is direct and positive. The answer should be equally direct and positive in order to justify a dissolution of the injunction granted upon such a complaint, or there should be other positive proof.

The foregoing are to be taken as my own views only, the points not having been considered in consultation. I have seen fit to state them, because I consider them fully as safe, if not safer, grounds upon which to rest the decision than that there considered. The point there determined was, that the order of the court below was erroneous because it dissolved, the injunction entirely, and stayed proceedings in this action until after.the action of the defendant against the city should be tried. The injunction, at most, should only have been modified so as to have allowed the defendant to proceed in his action at law against the city to recover the sum claimed by him in excess of that admitted by the city to be due in this suit. He might be permitted to proceed at law to establish his right to such excess, on his stipulating to abandon, in that suit, all claim to the debt, to the extent of the sum conceded to be due in this. Such was the order of the chancellor in a similar case (City Banlc v. Bangs, 2 Paige, 570); and we think it was the proper one to have been made here.

By the Court.— The order is reversed, and the canse remanded for further proceedings according to law.