McCue v. City of Waupun

96 Wis. 625 | Wis. | 1897

PiNNEY, L

By sec. 58, ch. 326, Laws of 1889, as amended by sec. 27, ch. 312, Laws of 1893, it was provided that -‘no action shall be maintained by any person, against any city organized under the provisions of this act, upon any claim: or demand of any hind or character whatsoever, until such person shall have first presented his claim or demand to the common council for allowance, and the same shall have been disallowed, in whole or in part;” and sec. 59, ch. 326, Laws of 1889, provides that “ the determination of the common council disallowing in whole or in part any claim shall be final and conclusive, and a bar to any action in any court founded on such claim, unless an appeal be taken from the decision of such common council, as in this act provided.” By sec. 60 the time to appeal from sucb disallowance is limited to twenty days after making sucb decision or disallowance. The amendment to said sec. 58 consisted wholly of incorporating in the section the words above in italics, “ of any kind or character whatsoever.” These statutory provisions became and were, at the time of the disallowance of the plaintiff’s claim, a part of the charter of the defendant city. The provisions of sec. 58, thus adopted, as at first enacted and before amended as above stated, were substantially the same as those of the charter of the city of Madison, construed in Kelley v. Madison, 43 Wis. 638, where the general meaning of the words “any claim or demand” was held to be so limited and restrained by other provisions of the charter in respect to. the filing and allowance of 'accounts or demands that these words could not be held to include a cause of action in tort, and a more-limited meaning was accordingly, given to them. But for the amendment to sec. 58, by which the phrase “ any claim or demand ” was extended so as to., read “ any claim or demand of any hind or character what-, soever,” this case would be ruled by that of Kelley v. Madison, supra. The section, as thus amended and adopted by the defendant, is very broad and comprehensive, and was evidently designed to change the rule of Kelley v. Madison, and to bring within its language claims or demands founded upon tort, thus restoring the general meaning assigned to the words “ claims or demands,” as shown by the authorities cited by Mr. Justice Cole in that case (page 644). According to Lord Coke, as appears in Vedder v. Vedder, 1 Denio, 261, the word demand “ is the largest word in law except claim; and a release of demands discharges all sorts of actions, rights, and titles, conditions before or after breach, executions, appeals, rents of all kinds, covenants, annuities, contracts, recognizances, statutes and commons. Bac. Abr. Belease’ (I); Litt. sec. 508; Co. Litt. 291b; Edward Altham's Case, 8 Coke, 148a.” A similar effect was ascribed in Sheel v. Appleton, 49 Wis. 126, to a provision that “ no action shall be maintained by any person against the city, upon any claim or demand of any kind whatsoever, whether arising from contract or otherwise.” In Koch v. Ashland, 83 Wis. 361-363, the provision was: “No suit of any kind, or any claim of any character, shall be brought against the city, but the claimant shall file his claim with the city clerk,” and an appeal was given to the circuit court in case he was aggrieved by its disallowance; and it was held that an independent action upon a claim founded in tort could not be maintained. It will be observed that the statute, as amended, extends to any claim or demand “ of any kind or of any character whatsoever.” Before this amendment, a claim or demand founded in tort -was not within the statute. The entire purpose of the amendment was to make the statute applicable to claims or demands founded in tort as well as on contract. Van Frachen v. Ft. Howard, 88 Wis. 570. The evident policy of the act was to secure to the common council, before litigation should ensue, an opportunity for a full official examination of the merits of an important class of cases, that litigation might be avoided by timely action. To say that such claims are not within the statute as amended is to render the clear and comprehensive language of the amendment void of purpose and without effect; When the plaintiff’s claim was disallowed, he had the full statutory period of twenty days within which to appeal, but he failed to avail himself of this privilege. After the expiration of that period, he brought his action, and the defense insisted on by answer was that his action was barred by reason of his failure to appeal, and this was a valid answer in bar. Watson v. Appleton, 62 Wis. 267; Kocli v. Ashland, 83 Wis. 361.

The failure of the court to find on the plea in abatement, effect having been properly given to the same matter in bar, cannot be regarded as an error prejudicial to the plaintiff. A formal finding, sustaining the answer in abatement, would have served no beneficial purpose when the same matter was an absolute bar upon the merits. The alleged error does not affect the substantial rights of the plaintiff, and furnishes no ground for reversal of the judgment. E. S. sec. 2829.

It follows that the judgment of the circuit court ivas rightly given for the defendant.

By the Court.— The judgment of the circuit court is affirmed.