Benware v. Town of Pine Valley

• Decision Date: 22 November 1881
• Citation: 10 N.W. 695,53 Wis. 527
• Parties: BENWARE AND ANOTHER v. TOWN OF PINE VALLEY.
• Court: Wisconsin Supreme Court

53 Wis. 527

10 N.W. 695

BENWARE AND ANOTHER

v.TOWN OF PINE VALLEY.

Supreme Court of Wisconsin.

Filed November 22, 1881.

Appeal from circuit court, Clark county.

This is an action to recover damages for personal injury of the plaintiff Celestia, alleged to have been caused by a defect in a sidewalk in an unincorporated village of the defendant town. The answer was a general denial, except as to certain formal parts of the complaint. On the trial the defendant objected to any evidence under the complaint, which was sustained by the court, and judgment was thereupon ordered and directed, and was accordingly entered in favor of the defendant, and against the plaintiff, from which this appeal is brought.R. J. MacBride and B. F. French, for appellants.

James O'Neill and J. R. Sturdevant, for respondent.

CASSODAY, J.

The giving of the notice of the injury, and the time and place where it occurred, is alleged in the complaint, as required by section 1339, Rev. St. In addition to such notice, the statute also provides that “no action upon any claim or cause of action, for which a money judgment only is demandable, shall be maintained against any town, unless a statement of such claim shall have been filed with the town clerk, to be laid before the town board of audit, nor until ten days after the next annual town meeting thereafter.” Section 824, Rev. St.

Is this section applicable to the case at bar? It first made its appearance in the present Revision. The reasons given by the revisors for the adoption are stated thus: “New section, to enable towns to have the opportunity to exercise the power conferred on them at town meetings to vote to settle claims. It is similar to the provision in favor of counties, and is necessary to enable towns to save needless costs, and often to avoid being forced into litigation which they might by judicious action escape.” Revisors' Notes, 71. With that construction placed upon it in advance by the revisors, it was adopted by the legislature. The construction recently placed upon this section by this court is in strict harmony with that given by the revisors. Wright v. Town of Merrimac, 9 N. W. REP. 390. As the language of that section is substantially like section 676, Rev. St., the opinion in Wright v. Town of Merrimac may, on casual reading, appear to be inconsistent with Stringham v. Winnebago, 24 Wis. 594;Kellogg v. Winnebago, 42 Wis. 97; but by reference to section 42, c. 13, Rev. St. 1858, it will appear that the statute under which they were made was essentially different from what it is now. By the Revision the section was “amended to embrace every case of a money demand upon the county, including claims for unliquidated damages, as well as all others.” Revisors' Notes, 61. The section requiring such statement to be filed with the town clerk being applicable to the case before us, the question occurs whether it is essential, to maintain the action, that the fact of such filing should have been alleged in the complaint, or whether it was a mere matter of proof.

In Susenguth v. Town of Rantoul, 48 Wis. 334, it was held that the notice of injury required by section 1339 must be alleged in the complaint; and a general demurrer to a complaint, not containing such allegation, was there sustained. The reasoning of that case, though under a different statute, seems to be equally applicable, as the language of the two sections in that regard is, in effect, the same....