Sheel v. City of Appleton

• Decision Date: 30 March 1880
• Parties: SHEEL and wife v. THE CITY OF APPLETON
• Court: Wisconsin Supreme Court

5 N.W. 27

49 Wis. 125

SHEEL and wife v. THE CITY OF APPLETON

Supreme Court of Wisconsin

March 30, 1880

Argued March 16, 1880

APPEAL from the Circuit Court for Outagamie County.

This action was brought in the circuit court by husband and wife to recover damages for injuries to the wife, received by her when walking over the sidewalk of one of the public streets in the defendant city, and alleged to have been caused by a defect in such sidewalk. No questions are raised on the pleadings, and there is no exception to any ruling of the court on the admission of testimony. The evidence tends to prove the allegations of the complaint. Errors are assigned upon the charge of the court to the jury. The charge and exceptions thereto are sufficiently stated in the opinion. Error is also assigned upon the refusal of the court to give the following instruction, proposed on behalf of the city "If the jury find, from the evidence, that the hole in question had only existed one day prior to the fall of the plaintiff Catharine Sheel, and the defendant city had no actual knowledge of its existence, the verdict must be for the defendant." The plaintiffs recovered, and the defendant appealed from the judgment entered against it pursuant to the verdict.

Judgment affirmed.

H. C Sloan, with A. L. Collins, of counsel, for the appellant.

Wm Kennedy, for the respondents.

OPINION

WILLIAM P. LYON, J.

1. It was claimed in argument, by counsel for the defendant city, that the circuit court had no jurisdiction of the action. The claim is founded upon certain provisions contained in the charter of that city. Laws of 1876, ch. 47.

Section 25 of subch. 5 (omitting a proviso not material here) is as follows: "No action shall be maintained by any person against the city upon any claims or demands of any kind whatsoever, whether arising from contract or otherwise, until such person shall first have presented such claim or demand to the common council for allowance." The next section provides that "the determination of the common council, disallowing in whole or in part any claim of any person, shall be final and conclusive, and a perpetual bar to any action in any court founded on such claim, except that such person may appeal to the circuit court, as provided in section 27 of this chapter." The following sections prescribe the procedure on such appeals.

Section 25 of the charter of Appleton is more comprehensive in its terms than the corresponding section in the charter of Madison, which was considered in Kelley v. Madison, 43 Wis. 638. It is probable that actions sounding in tort were intended to be included in the prohibition of section 25 of the defendant's charter. For the purposes of this appeal it will be assumed that such actions are so included.

If the prohibition in section 25, "No action shall be maintained by any person against the city," etc., takes from the circuit court jurisdiction of the subject matter of the action, the objection is well taken, although first made in this court. But if the prohibition merely deprives the plaintiffs of legal capacity to bring the action in the circuit court in the first instance, the objection is waived, the same not having been taken by demurrer or answer. R. S., 725, secs. 2649-54.

It seems to us that had the legislature intended absolutely to take away the jurisdiction of the circuit court to hear, try and determine an action originally brought in it against the city of Appleton, language would have been used similar to that employed to restrict the jurisdiction of justices of the peace: "No justice shall have cognizance of any action" against an executor or administrator, or for libel, slander, etc. R. S., 897, sec. 3573. But no such language is employed in the city charter. On the contrary the jurisdiction of the circuit court to hear, try and determine this controversy is expressly recognized. The only restriction the charter contains relates to the procedure. It requires that the claim must, so to speak, be filtered through the common council; that the case must go to the circuit court through that channel. The charter does not say to the court that it shall not take jurisdiction of the controversy or claim, but to the claimant that he shall not...