Siegel v. Town of Liberty

118 Wis. 599 | Wis. | 1903

The following opinion was filed June 18, 1903:

Siebecker, J.

Appellant assigns error upon the court’s ruling excluding testimony offered to prove the contents of a copy of the original petition requesting the purchase of the road machine, which the town chairman asserts is the basis of his authority to make the contract in question, under sec. 1223, Stats. 1898, as amended by ch. 83, Laws of 1899. The evidence tends to show that a petition was signed by taxpayers of these road districts requesting the chairman to purchase such a machine. The original of this petition was not produced upon the trial, and was not in the possession of either party. Plaintiff was sworn as a witness in his own behalf, and testified that he did not see this original petition, but saw what purported to be a copy filed in the town clerk’s office, and offered to state the contents of this copy. Upon objection the court held such evidence inadmissible. It seems this copy was equally accessible to both parties. Appellant took no steps to procure it, nor did he offer to show that he could not produce it in court, nor did it appear that he was misled by the opposing party, which caused his failure to produce the document. Under these circumstances the evidence offered was properly excluded, for the reason that it was incompetent, nor was there a proper foundation laid for offering secondary evidence to prove the contents of the copy on file. Sexsmith v. Jones, 13 Wis. 565; 1 Greenleaf, Ev. §§ 82, 87.

It is further contended that the court erred in its finding that appellant failed in his proof to establish that the petition did not contain the names of a majority of the taxpayers of each of said road districts, and that the persons who signed the petition do not represent more than one half of the taxable property in said districts according to the last preceding assessment roll. The evidence material to these questions fails to support the issues in favor of plaintiff’s contention. This would necessarily require a finding as made by the trial court aside from the presumption that the proceedings taken by the town board and its chairman were based on authority, and that they proceeded regularly to purchase the road machine. The finding is, however, supported by proof, in-ferable from the evidence. The testimony tends to show that of the fourteen taxpayers of district No. 9, six, aside from Richard Jenkins and August Sewall, signed the petition, and that the signatures of these two parties were properly on the petition. It further appears that these eight persons represented more than one half of the taxable property in district No. 9, according to the last preceding assessment roll. This meets the requirements of the statute, and furnishes a proper basis for the levy of the tax and the purchase of the road machine by the chairman of the town. No proof was offered upon these issues as to districts Nos. 5 and 6. The finding and the judgment were proper.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied July 3, 1903.