83 Wis. 455 | Wis. | 1892
The claim filed by the plaintiff with the city clerk was for damages resulting to his property from a lawful change of grade of the street in front of the same. This is the effect of the decision upon the former appeal in this case (78 Wis. 457), where the original complaint, which, in its material averments, was substantially a copy of the claim, was under consideration. This court then said, “ The complaint shows a proper execution of a valid ordinance.” Upon this premise it was held that the provision of the former charter of Eau Claire (ch. 16, P. & L. Laws of 1872) which gave the property owner a right to claim damages of the city upon the making of a change of grade was repealed by ch. 184, Laws of 1889, before the ordinance of which plaintiff complains went into effect, and consequently that plaintiff had no cause of action.
The question now raised is entirely different. It is, Can the plaintiff present his claim to the council claiming dam-, ages resulting from the legally conducted grading of a street under a valid ordinance, and upon appeal change his' ground, and claim and recover damages for an illegal and unauthorized grading under an invalid ordinance? To ex
We think this question must be answered in the negative.
The provision of the charter of the city (sec. 22, subch. 1, ch. 184, Laws of 1889) is as follows: “ No suit of any kind, or any claim or cause of action, either ex contractu or ex delicto, shall be brought against said city, but the claimant shall file his claim with the city clerk for the action of the common council thereon; and, if he feels aggrieved by their determination, he may appeal,” etc. Manifestly he cannot present a claim for one cause of action, and, when that is rejected, appeal to the circuit court, and file a complaint, and recover upon an entirely different cause of action. He cannot file his claim upon a contract debt, and recover for personal injuries received because of a defective highway.
While it is not necessary that the claim filed with the clerk should have all the essentials of a formal pleading, it should certainly intelligibly present the facts on which liability is claimed, for it is the evident purpose of the law that the council should have an opportunity to act upon these facts in the first instance before the contention goes to any court. They have had no such opportunity here. The claim presented to them stated no facts which raised any liability. Had it stated the facts as to the illegality of the work upon which alone the recovery is based, it may well be that the council would have allowed a reasonable amount to the plaintiff, and ended the controversy without appeal.
The simple fact is tha,t the claim on which plaintiff recovered was never filed, and, without such filing, the plaintiff has no standing in court. The defendant’s motion to
By the Court.— Judgment reversed, and the cause remanded for a new trial.
