Wood & Gumaer Mfg. Co. v. Whitcomb

• Decision Date: 22 November 1898
• Citation: 101 Wis. 226,77 N.W. 175
• Parties: WOOD & GUMAER MFG. CO. v. WHITCOMB ET AL.
• Court: Wisconsin Supreme Court

101 Wis. 226

77 N.W. 175

WOOD & GUMAER MFG. CO.

v.WHITCOMB ET AL.

Supreme Court of Wisconsin.

Nov. 22, 1898.

Appeal from circuit court, Waupaca county; Charles M. Webb, Judge.

Action by the Wood & Gumaer Manufacturing Company against Henry Whitcomb and others, as receivers. From a judgment dismissing the action, plaintiff appeals. Affirmed.A. L. Hutchinson, for appellant.

Howard Morris and T. H. Gill, for respondents.

CASSODAY, C. J.

This action was commenced in justice's court to recover $100, the alleged value of a horse belonging to the plaintiff, which is alleged to have, on August 25, 1896, escaped from the lands of the plaintiff to the right of way of the Wisconsin Central Railroad Company, of which the defendants were receivers, through the carelessness and negligence of the defendants, and while there was killed by being struck and run over by a train of cars and locomotive engine upon the track of said railroad; that said horse was killed by reason of the carelessness and negligence of the defendants; that the defendants had refused to pay for the same, although due notice and demand for payment thereof had been made on the defendants. The defendants answered by way of admissions and denials. Upon the trial before the justice, December 28, 1896, the court found the defendants guilty of negligence, and that the plaintiff was entitled to recover judgment for $100 and the costs of the action, taxed at $20.46. From that judgment the defendants appealed to the circuit court. August 4, 1897, the plaintiff caused a written notice to be served upon the defendants, which notice described the place and time and killing of the horse, its value, and that satisfaction therefor was claimed of the defendants, as required by chapter 202, Laws 1893. November 8, 1897, the case was called for trial before the circuit court and a jury, when the plaintiff moved for leave to amend its complaint by adding thereto an allegation of the giving of such notice August 4, 1897. That motion was denied. Thereupon, and after a witness had been sworn on behalf of the plaintiff, the defendants objected to the admission of any evidence under the complaint, for the reason that it did not state facts sufficient to constitute a cause of action; which objection was sustained by the court. Thereafter the court ordered judgment to be entered in favor of the defendants and against the plaintiff dismissing the action, and for costs to be taxed. From the judgment entered thereon accordingly, the plaintiff brings this appeal.

The statute provides, in effect, that no...