104 Wis. 39 | Wis. | 1899
On June.25,1895, the plaintiff met with an accident while traveling on one of the streets of the defendant city, alleged to have been caused by the want of repairs, therein. Due notice thereof was given the city on July 9,. 1895. Thereafter, on July 19th of the same year, the plaintiff commenced an action against the Fond du Lac Light, Power & Railway Company, in which it was claimed that the company was primarily liable for the defect in the street. In November folio wing, the plaintiff secured a judgment against the company for $2,063.21 damages and costs. An execution was issued, and returned wholly unsatisfied. On January 20, 1896, and within one year from the happening of the accident, the plaintiff commenced this action against the-city, setting up the recovery against the company, and claiming the right to recover the amount thereof against the city. The city answered that one Elihu Colman, and not the company, was primarily liable for the defect in the street, and denying any liability therefor. The case came to trial, and resulted in a judgment for plaintiff. An appeal, was taken to this court, and upon due consideration it was determined that the evidence showed that Colman, as well as the company, was primarily liable to plaintiff, and that under the city charter the exhaustion of all legal remedies against both was a condition precedent to the right of plaintiff to maintain this action. 99 Wis. 333.
Upon remission to the court below the plaintiff applied for and secured leave to make Colman a party defendant. The plaintiff made and served an amended complaint setting*
The points made by the counsel for the city against the-order of the court below are based upon certain charter provisions which it is claimed preclude a recovery in this action. Sec. 4, subch. 18, ch. 152, Laws of 1883, provides, in substance, that in case of injury or damage by reason of the insufficient or defective condition of the streets, produced or caused by the wrong, neglect of duty, or default of any person or corporation, such person or corporation shall be primarily liable for all damages for such injury, “ and the city shall not be liable therefor until all legal remedies shall have been exhausted to collect such damages from such person or corporation.” Sec. 4, ch. 435, Laws of 1889, being an amendment to the charter, contains a clause to the effect that no-action shall lie against the city on account of injuries occurring by reason of the insufficiency or want of repair of any street, “ unless such action shall be commenced within one year from the happening of such injury,” nor unless notice should be given to certain officials, named, within thirty days. Relying upon these provisions, it is argued that the-action should not only.be commenced against the city within the year, but also against the person primarily liable.
This contention ignores the force and legal effect of ch. 411, Laws of 1889, now sec. 1340», Stats. 1898, which provides that the city and party primarily liable may be sued in the same action, and that in any such action brought against any town, city, village, or county in which it shall be alleged in the answer that the defendant is not primarily liable, and that some person or private corporation is so lia
Omitting the allegations of the complaint regarding the railway company, we find there is sufficient allegation of injury, notice to the city, answer of the city setting up Col-man’s liability, leave to amend complaint, and proper allegations of Colman’s negligence. W^e are satisfied that the conditions of the charter and general law have been met, and the objection to the complaint on the grounds stated cannot prevail.
It is further argued that the plaintiff has lost his right to prosecute this action as it now stands becaus.e of laches in making Colman a party defendant, under McFarlane v. Milwaukee, 51 Wis. 691. Upon the facts stated, we should hesi
Another branch of appellant’s argument is based upon the assumption or suggestion that Colman is dead. No mention, of that fact is made in the pleadings, and counsel had no right to found any argument upon, or bring into the case, a fact not disclosed by the record.
By the OourL— The order of the circuit court is affirmed.