City of Milwaukee v. Town of Oak Creek

• Decision Date: 06 October 1959
• Citation: 98 N.W.2d 469,8 Wis.2d 102
• Parties: CITY OF MILWAUKEE, Appellant, Melvin P. Kuhnke et al., Interpleaded Plaintiffs, v. TOWN OF OAK CREEK et al., Defendants, City of Oak Creek, Interpleaded-Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 469

98 N.W.2d 469

8 Wis.2d 102

CITY OF MILWAUKEE, Appellant Melvin P. Kuhnke et al., Interpleaded Plaintiffs, v. TOWN OF OAK CREEK et al., Defendants City of Oak Creek, Interpleaded-Defendant-Respondent.

Supreme Court of Wisconsin.

Oct. 6, 1959.

Rehearing Denied Dec. 1, 1959.

Walter J. Mattison, City Atty., Richard F. Maruszewski, John F. Cook, Harvey G. Odenbrett, Asst. City Attys., Madison, for appellant and for interpleaded plaintiffs.

Joseph E. Tierney and Eugene H. Grobschmidt, City Attys., of City of Oak Creek, Milwaukee, Kneeland A. Godfrey and Walter H. Bender, Milwaukee, of counsel, for defendants and interpleaded-defendant-respondent.

DIETERICH, Justice.

A search of the amended complaint to see what interest Milwaukee has asserted on which it seeks to base its right in this action to challenge the incorporation of the city of Oak Creek are in the following allegations set forth in paragraphs 7, 8, and 9 of the plaintiff's amended complaint:

'7. That, upon information and belief, the defendant town through its officers acting purportedly pursuant to ch. 500, Laws of 1955, is purportedly proceeding with an attempt toward the incorporation of the town of Oak Creek as a city of the fourth class.

'8. That on July 29, 1955, a proposed ordinance was introduced into the common council of the plaintiff, city of Milwaukee, to annex a certain territory within the town of Oak Creek; that the proposed ordinance was adopted on October 4, 1955, and published on October 14, 1955; that said ordinance is Ordinance No. 324 of the plaintiff, city of Milwaukee, Common Council file No. 55-1604-a; that a copy thereof is attached hereto and marked Exhibit 'A' and made a part hereof as if herein set forth in full; that, upon information and belief, the territory described in Exhibit 'A' and owned by the city of Milwaukee was a part of the town of Oak Creek at the time the purported proceedings to attempt to incorporate the town of Oak Creek as a city of the fourth class were purportedly commenced; that the plaintiff, city of Milwaukee, was prior to the time the attempt to incorporate the town of Oak Creek was purportedly commenced and is now the owner of the lands described in said Exhibit 'A' hereof; that the proceedings to annex the said territory described in Exhibit 'A' were commenced prior to and were pending and were being prosecuted in reason and good faith at the time the purported incorporation proceedings of the town of Oak Creek were attempted to be commenced, so plaintiff is informed and believes; that the territory described in Exhibit 'A' became a part of the city of Milwaukee on October 19, 1955; that such land annexed to the city of Milwaukee, upon information and belief, is included in the territory purportedly attempted to be incorporated as a city of the fourth class.

'9. That, upon information and belief, a notice was posted and published pursuant to sec. 62.07 of the Wisconsin Statutes setting forth that an annexation petition was to be circulated for the annexation of another certain territory to the city of Milwaukee; that the said certain territory described in the said notice, so plaintiff alleges upon information and belief, was described as follows: * * * that, upon information and belief, the proceeding was commenced to annex the aforedescribed area within the town of Oak Creek and adjacent to the city of Milwaukee to the city of Milwaukee by the posting of said notice on August 2, 1955, which notice set forth than an annexation petition was to be circulated and included an accurate description of the territory involved, and was posted in nine public places in the town of Oak Creek, and that a copy of such notice was also published in a newspaper of general circulation within the county of Milwaukee on August 3, 1955, and republished on August 4, 1955; that, upon information and belief, the content of the said notice so posted and published was as appears on Exhibit 'B' attached hereto, which is made a part hereof as if herein set forth in full; that, upon in formation and belief, a petition was caused to be circulated for the annexation of the territory described in the aforesaid notice within the time provided in sec. 62.07 of the Wisconsin Statutes.'

The record discloses that at the time the plaintiff amended its complaint, May 19, 1957, the annexation proceedings of the city of Milwaukee which were started on August 2, 1955, had not been pursued.

In Village of Brown Deer v. Milwaukee, 1956, 274 Wis. 50, 63, 79 N.W.2d 340, 347, it is stated:

'* * * that a territory cannot be exempted for long from a competing consolidation by irresponsible posting of annexation notices, for in order to hold its priority, the annexation must be completed within a reasonable time. In re Village of Brown Deer, 267 Wis. 481, 484, 66 N.W.2d 333.'

The posting of the annexation notices on August 2, 1955, and the claiming of priority thereunder, failed to meet the reasonable time requirement and, therefore, was no bar to the proceeding for incorporation of the city of Oak Creek.

The certificate of incorporation of the city of Oak Creek described the territory included in the city of Oak Creek and expressly excluded any and all of the area owned by the city of Milwaukee, and included in the annexation ordinance of October 4, 1955, and it became complete on December 15, 1955, when the Secretary of State issued the certificate of incorporation to the city of Oak Creek. The incorporators of the city of Oak Creek were not required to include the area owned by the city of Milwaukee. In re Incorporation of Village of Oconomowoc Lake, 1959, 7 Wis.2d 400, 97 N.W.2d 189, and In re Village of Elm Grove, 1954, 267 Wis. 157, 64 N.W.2d 874.

Sec. 260.13, Stats., provides:

'Real party in interest must prosecute. Every action must be prosecuted in the name of the real party in interest * * *'

In the early case of Robbins v. Deverill, 1865, 20 Wis. *142, this court held that:

'The statute is imperative, that every action must be prosecuted in the name of the real party in interest * * *'

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