Achtor v. Pewaukee Lake Sanitary Dist., 76-589

• Decision Date: 01 May 1979
• Docket Number: No. 76-589,76-589
• Citation: 88 Wis.2d 658,277 N.W.2d 778
• Parties: Ramona ACHTOR and other unknown individuals similarly situated, Plaintiff-Appellant, v. PEWAUKEE LAKE SANITARY DISTRICT, a Wisconsin Sanitary District, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 778

277 N.W.2d 778

88 Wis.2d 658

Ramona ACHTOR and other unknown individuals similarly

situated, Plaintiff-Appellant, v. PEWAUKEE LAKE SANITARY DISTRICT, a Wisconsin Sanitary

District, Defendant-Respondent.

No. 76-589.

Supreme Court of Wisconsin.

Submitted on Briefs March 28, 1979.

Decided May 1, 1979.

August E. Fabyan, Jr., and Haight & Fabyan, Hartland, on brief, for plaintiff-appellant.

James L. Steimel and Hunter, Tikalsky & Steimel, Waukesha, on brief, for defendant-respondent.

HEFFERNAN, Justice.

This is an appeal from an order of the circuit court dismissing a complaint brought on behalf of certain unnamed individuals to contest a condemnation procedure on the grounds that the parties did not have the capacity to sue, were not united in interest, and did not constitute an identifiable class. The appeal attacks the rationale of the order, particularly the holding that the plaintiffs did not constitute an identifiable class. We do not reach that question, for this court sees, on the face of the record, a defect of subject-matter jurisdiction which requires a dismissal of the cause of action of the unnamed plaintiffs. The order of the trial court is affirmed.

The record shows that Ramona Achtor served a summons and complaint in her individual action on the condemnor, Sanitary District, on December 27, 1975, claiming that the condemnation of her property was defective. On January 1, 1976, new rules of civil procedure went into effect providing in part that a cause of action is not commenced until the summons and complaint are filed in court. Prior to January 1, 1976, the service of a summons sufficed to commence an action and the plaintiff thereafter had one year in which to serve and file the complaint.

The original complaint, on behalf of Ramona Achtor individually, was later amended by the addition of a cause of action on behalf of unknown plaintiffs who also were aggrieved by the condemnation procedure. The amended complaint was served on January 15, 1976. The original complaint and the amended complaint were filed with the court on August 24, 1976.

The defendant, Sanitary District, demurred to the amended complaint on the ground that neither cause of action alleged sufficient facts to constitute a cause of action. The trial court sustained the demurrer. In addition, it held that the court had no subject-matter jurisdiction, because, under sec. 32.05(5), Stats., an action to contest a condemnation must be brought within forty days of the service of a jurisdictional offer. It concluded that the action was not commenced until the summons and complaint were filed on August 24, 1976, and that the action was not timely and the court, therefore, did not have subject-matter jurisdiction.

Achtor's attorney asked for a review of this determination, stating that the defendant's demurrer did not assert that the action was commenced beyond the statutory time and that the file, on its face, showed that the action was commenced approximately thirty days after the jurisdictional offer was postmarked. Accompanying that motion for reconsideration, Achtor's counsel submitted an affidavit stating that, although after January 1, 1976, an action could only be commenced by the filing of a summons and complaint with the court, the statute which was in effect on the date of the service of the summons and complaint was sec. 262.13 of the prior code. That prior statute provided that service of a summons was sufficient to constitute the commencement of an action and that a plaintiff had a year to file the summons in court. On the basis of this motion, the court reconsidered its decision and entered an order dated February 16, 1977.

The revised order again held that Achtor's claim must be dismissed, this time on the ground that facts sufficient to state a cause of action were not alleged. Achtor was permitted to plead over. Apparently she has done so by another amended complaint not relevant to this appeal.

The court on reconsideration correctly concluded that the service of the summons in Achtor's individual action was sufficient under the rules of procedure in effect in December of 1975 to meet the time strictures of sec. 32.05(5), Stats.

We conclude, however, that a different rationale should have been applied to the determination of whether the cause of action on behalf of the unknown plaintiffs was timely.

The facts revealed on the face of the amended complaint, purporting to join the unknown parties as plaintiffs, show that the jurisdictional offer was made prior to January 15, 1976, the date on which the amended complaint was served. This amended complaint was not filed until August 24, 1976 clearly more than forty days after the jurisdictional offers were made to the unknown plaintiffs. If the cause of action as to them was not commenced until filing of the summons and complaint as provided by the new rules of civil procedure, the action was untimely and failed to meet the statutory time within which the court had jurisdiction to review the condemnation procedure.

Prior to the effective date of the new code, amended complaints did not relate back to the time of service of the original summons and complaint for purposes of satisfying statutes of limitations if the amendment changed the cause of action, the party defendant or the party plaintiff. Meinshausen v. A. Gettelman Brewing Co., 133 Wis. 95, 113 N.W. 408 (1907); Baker v. Tormey, 209 Wis. 627, 245 N.W. 652 (1932); Heifetz v. Johnson, 61 Wis.2d 111, 211 N.W.2d 834 (1973); Borde v. Hake, 44 Wis.2d 22, 170 N.W.2d 768 (1969).

Hence, under the pre-1976 rule, which Achtor asserts applies to her complaint, the original complaint cannot be amended to add additional plainti...