158 Wis. 564 | Wis. | 1914
The city upon its appeal makes two main contentions : First, that the case was improperly dismissed as to the county; and second, that it was error to recover from the city the full amount of fines collected, since the county was entitled to a collection fee of two per cent.
1. The circuit court found that the fines collected by the city had been used by it in defraying the expenses of courts having criminal jurisdiction within the County of Milwau-
The statutory provisions for the payment of the expenses of the municipal court are these: The salary of the judge, clerk, and deputies shall be “all payable monthly at the end of each and every month by the Oity of Milwaukee.” Sec. 2513, R. S. 1878, as amended by sec. 8, ch. 7, Laws of 1895 (Hirschberg’s Milwaukee County Laws, sec. 1165). Sec. 2506, R. S. 1878, as amended by see. 4, ch. .7, Laws of 1895, requires the clerk of the court, under the direction of the common council of the Oity of Milwaukee, to “procure and furnish all necessary blanks, stationery, book and paper cases, desks, record books, office furniture, lights and fuel, for the use of said court and its clerks, at the expense of said city.” Likewise a seal for the court was required to be procured at
It will thus be seen that when the city paid out the proceeds of tbe fines collected for defraying tbe expenses of tbe two courts it was only complying with a duty imposed upon it by statute. Upon tbe first appeal of this case (State v. Milwaukee, 145 Wis. 131, 129 N. W. 1101) it was ruled that tbe city could be held liable only in tbe event and to tbe extent that it bad used tbe proceeds of tbe fines and penalties turned over to tbe city treasurer for legitimate municipal expenses. That the cost of maintenance of the two courts in question is legitimate municipal expense is evident from tbe statutory provisions relating thereto. But it is urged on behalf of tbe city that since tbe statute cast tbe duty upon tbe county to contribute one half thereof, one half of tbe money so paid out by tbe city should be regarded as. paid out for a legitimate county expense, and that tbe suit was therefore improperly dismissed as to tbe county. There is much force in this contention, and bad tbe proof showed that tbe city
It is true that under the statutes relating to the maintenance of the two courts the city, upon the proof made, was shown to be primarily liable to the state, but it claimed the right to show that its codefendant was liable, if not to the ■state directly, then to itself, for one half of the moneys expended by it for the maintenance of these courts. This it should have been permitted to do in order that the whole controversy might be settled in one action and the rights of all the parties adjudicated upon between themselves as well as between the plaintiff and defendants. The action was for money had and received, tried by the court, and rules of practice applicable to equity cases should have governed its procedure. The primary matter to be adjudicated was the right of the state to recover against the defendants or either of them. The secondary matter growing directly out of the primary matter was the adjustment between the two defendants of their rights as between themselves. All parties were before the court, necessarily brought there because of their
“One of the most valuable features of equitable remedies is the opportunity they afford the court to lay hold of a subject matter, however large, made up of a single primary right and all rights germane thereto, however numerous, or several such subject matters under certain circumstances, bring all parties directly interested before the court, with all parties necessary to be there for their due protection, and settle the entire controversy by a single decree in a single administration proceeding, giving- to each party his just measure of relief or protection, and each his just measure of punishment, forever closing the primary dispute and all so connected therewith as 'to be legitimately considered a part thereof.”
So here, while this was strictly not a suit in equity it was an action tried by the court and to which equitable procedure should have been applied, so that all claims connected with and necessarily growing out of the subject matter of the litigation would be finally settled between all the parties thereto.
But since under the proof the city was primarily liable to the state for all the moneys derived from fines and not paid over, the judgment against it will stand, and only the issue between the city and the county as to the extent, if any, the county has reimbursed the city during and since the year 1898 for the moneys expended by the city for the maintenance of the two courts will be remanded for adjudication, to the end that if the'city is entitled to a judgment against the county by reason of its having to answer the demands of the state it may have it in this action. The state, if it desires, may remain a party to the issue to be tried.
Eor the purpose of the accounting indicated it is not neces
2. The city’s claim that a recovery should have been had for only ninety-eight per cent, of the amount collected, since the cbunty treasurer was under the law entitled to a collection fee of two per cent., does not rest upon a substantial basis. This money was never turned over to the county treasurer. No collection fee was earned. The city is not, by the judgment, required to pay more to the state than it was by the law required to pay to the county.
3. The trial court barred the recovery of the amount of fines collected in 1898 on the ground that the evidence showed the proceeds of such fines were expended by the city for court expenses during the year they were collected and before February 4, 1899. It held that a cause of action accrued to the state- the moment the city used, for legitimate municipal expenses, the moneys collected. In this the court erred. No cause of action for conversion could have been maintained before the money became due and payable to the state from the county under the terms of the statute, sec. 1121, Stats. 1898, which was the first Monday of February following the year of collection, or the 6th of February, 1899. Until that time no duty devolved upon the county to pay, and it would not
Upon the former appeal (State v. Milwaukee, 152 Wis. 228, 138 N. W. 1006) it was held that all claims accruing six years or more prior to the taking effect of ch. 1, Laws of 1905, were barred. Said chapter took effect February 4, 1905. The statute of limitations, therefore, had run on all Claims accruing prior to February 4, 1899. In the former opinion that was inadvertently stated as February 1, 1899. Since no cause of action accrued to the state for fines collected in 1898 until February 6, 1899, it follows that a recovery for such fines was not barred, and the amount, $3,746, should have been included in the judgment.
4. Interest was allowed by the trial court on the amount found due only from-January 11, 1912, the date of service of the third amended complaint, being the one upon which the .■action was tried. This was done on the theory that a demand was necessary to start the running of interest; that the ■service of demurrable complaints could not be deemed good demands; and that the service of a good complaint could not relate back to the service of the summons, which in this case was served January 4, 1907. Since we have reached the con-clusión that no demand was required to start the running of interest, it will not be necessary to pass upon the two latter propositions of the trial judge. AVe however question their soundness. •
AYliere no time of payment is fixed, or where a claim is unliquidated, or where the question of liability is so involved in doubt that there are reasonable grounds for believing that no liability exists, a demand is, in the absence of peculiar equitable considerations, necessary to set interest running.
Allowing a recovery for the fines collected in 1898 and computing interest on the sums collected from the time they became payable, which in 1899 was the first Monday of February and in the subsequent years the third Monday of February, we reach the following result:
Amount due. When due. Int. to Oct. 27,1914. Total.
$3,746 Feb. 6, 1899 $3,383 24 $7,129 24
4,062 19, 1900 3,416 23 7,478 23
'3,761 18, 1901 2;937 93 6,698 93
5,953 17, 1902 4,294 12 10,247 12
7,842 16, 1903 4,856 74 12,198 74
9,049 15, 1904 5,444 48 14,493 48
8,095 20, 1905 4,378 05 12,473 05
12,124 19, 1906 5,831 65 17,955 65
16,278 18, 1907 6,855 34 23,133 34
11,286 17, 1908 4,078 02 15,364 02
13,758 15, 1909 4,150 35 17,908 3-5
Total amount due October 27, 1914. .$145,080 15
The circuit court allowed judgment in the sum of '■$102,697.68 damages and $46.22 costs. The judgment is
By the Court. — As against tbe state tbe city will take nothing on its appeal. As against tbe county tbe judgment is reversed, and tbe cause remanded for an accounting as indicated in'the opinion, with costs in favor of tbe city.
Upon tbe appeal of tbe state tbe judgment is modified as-indicated in the opinion and affirmed as modified, with costs-against tbe city.