Watson v. City of Appleton

62 Wis. 267 | Wis. | 1885

Cassoday, J.

In Sheet v. Appleton, 49 Wis. 125, the plaintiff’s claim was never presented to the common council, and, of course, never allowed nor disallowed. In that case there was no question made on the pleadings, and no exception taken to the admission or exclusion of any evidence. The only errors assigned in the printed brief related to the charge of the court and the refusal to give certain instructions. On the oral argument it was urged for the first time that the circuit court had no jurisdiction, by reason of the failure of the plaintiffs to present their claim to the common council of the city. This court held that the charter did not undertake to deprive the circuit court of jurisdiction, but only to regulate the method by which that court should acquire such jurisdiction, and that the defendant had waived all objection to the'non-presentation of the claim by joining issue and trying the case upon the merits without objection. None of the questions involved in that case are here presented, and hence the two cases are clearly distinguishable. The waiver in that case was grounded upon the same theory as a waiver of the right of the statute of limitations by failing to plead it, as in Lockhart v. Fessenich, 58 Wis. 588.

The several provisions of the city charter here involved were considered in Fleming v. Appleton, 55 Wis. 90. As there held, the neglect or refusal of the common council to act upon the plaintiff’s claim for sixty days after it was presented, must be deemed and taken to be a disallowance of the claim. The claim having been presented June 7, 1879, it is evident that the sixty days expired August 6, 1879. Sec. 28, subch. 5, ch. 47, Laws of 1876. At that time the right to appeal to the circuit court, as in case of a disallowed claim, accrued and was 'complete. Ibid. That right continued for only thirty days thereafter, and hence expired September 6, 1879. Id. secs. 27, 28. No appeal having been taken, the charter made such disallowance after September 6, 1879, “final and conclusive, and a perpetual bar to any action in any court founded on such claim.” Id. sec. 26. This is the effect of the decision cited. Such finality and conclusiveness, and such statutory bar necessarily operated as an extinguishment of the plaintiff’s claim, unless it was waived. Pierce v. Seymour, 52 Wis. 272; Lockhart v. Fessenich, 58 Wis. 588. Here it was not waived. After the plaintiff’s claim had thus been extinguished for more than a year and a half, this action was commenced in the circuit court, and the question is, Oan it be maintained, notwithstanding this provision of the charter set up in the answer to the contrary?

It is urged that the order overruling the written demurrer was an adjudication to the effect that the complaint was sufficient upon its face, and hence is res adjudieata in this action. Had the defendant declined to answer, and judgment been entered in favor of the plaintiff on the demurrer, and then the defendant had appealed from such judgment, there would have been no doubt but what the order on the demurrer would have been reviewable under the express provisions of the statutes, and without any exception having been taken thereto. Secs. 2872, 3070, R. S.; Armstrong v. Gibson, 31 Wis. 61; Hackett v. Carter, 38 Wis. 400; Schattschneider v. Johnson, 39 Wis. 387; Moritz v. Splitt, 55 Wis. 441; Doyle v. Gill, 59 Wis. 518. The same would have been true liad the court sustained the written demurrer, and the plaintiff had declined to amend, and judgment had been in favor of the defendant on the demurrer, and then the plaintiff had appealed from such judgment to this court. Ibid. Is the question here presented essentially any different? The answer having set up the bar prescribed in the charter, the trial court, with the whole record before it, and upon an objection to any evidence, in effect set aside the order previously made by the same court upon the face of the complaint, and excluded all evidence, and granted a judgment of nonsuit. It seems to us that the last determination of the court below, made upon the demurrer ore temes, was correct, and that it was not precluded from making it by reason of the former ruling upon the written demurrer.

In Hackett v. Carter, 38 Wis. 400, the demurrer to the original complaint for improperly uniting two causes of action was overruled, and no appeal taken from the order. The complaint being then amended in other respects, continued to improperly unite the two causes of action; and the defendant demurred thereto, in part upon the same ground. From an order overruling this last demurrer, the defendant appealed to this court, and upon that appeal it was urged, as it is here, that no appeal having been taken from the order overruling the first demurrer, the question thereby determined was res acljudicata. But the court held that by reason of the statute the doctrine of res adjudicatei had no application. In fact, that decision was put on the ground that the court would have been compelled to so decide had' judgment been taken in favor of the plaintiff, and the defendant had appealed therefrom instead of appealing from the order.

When the non-action of the common council had worked a disallowance of the plaintiff’s claim, she should have taken her appeal to the circuit court within the time prescribed by the charter; and then the complaint filed therein should have alleged the facts made requisite by the charter to give that court jurisdiction, or rather to show that the plaintiff had the right, or had not waived the right, to maintain her action in that forum. This would-have been in conformity with the rules of pleading in ordinary actions for injury by reason of defective highways, requiring the complaint to show that the conditions named in secs. 824, 1339, R. S., had been complied with. Wright v. Merrimack, 52 Wis. 466; Benware v. Pine Valley, 53 Wis. 527; C., M. & St. P. R'y Co. v. State, 53 Wis. 509; C. & N. W. R'y Co. v. Langlade, 55 Wis. 116; Weisenberg v. Winneconne, 56 Wis. 667; Wentworth v. Summit, 60 Wis. 281.

As it appears from the record that the plaintiff’s right to bring this action had been barred by the charter before this action was commenced, the judgment of the circuit court is affirmed.

By the Gourt.— Judgment affirmed.