City of Neenah v. Krueger
| Court | United States State Supreme Court of Wisconsin |
| Writing for the Court | ROSENBERRY |
| Citation | 206 Wis. 473,240 N.W. 402 |
| Parties | CITY OF NEENAH v. KRUEGER. |
| Decision Date | 12 January 1932 |
206 Wis. 473
240 N.W. 402
CITY OF NEENAH
v.
KRUEGER.
Supreme Court of Wisconsin.
Jan. 12, 1932.
Appeal from a judgment of the Circuit Court for Winnebago County; Fred Beglinger, Circuit Judge.
Action by the City of Neenah against M. W. Krueger. From the judgment, defendants appeal.--[By Editorial Staff.]
Affirmed.
Action begun in municipal court August 3, 1928; judgment entered February 7, 1931. Action for penalty, obstruction of a street. The defendant was found guilty of a breach of the ordinance and adjudged to pay a fine of $3. From this judgment the defendant appeals.
[240 N.W. 403]
Velte & Molzow, of Neenah, for appellant.
John W. O'Leary, City Atty., of Neenah, for respondent.
ROSENBERRY, C. J.
The defendant was found guilty of violation of section 2 of Ordinance 341, vol. 3. Sections 1 and 2 are printed in the margin.1
The case was tried before the court without a jury. After the evidence was all in and the court had the matter under advisement, it held that “Section 1 of the ordinance deals with a class of acts tending to a considerable obstruction or incumbrance of the streets but having a claim to be permitted by reason of some degree of general necessity, to determine which the ordinance requires a permit from the Board of Public Works, which when given may in proper cases prescribe the extent, the terms and conditions on which the privilege sought for will be granted.”
This would include such cases as obstructions required in the construction, repair, or demolition of buildings or other like operations. The court was of the view that the acts complained of in this case, not being of the kind prohibited by section 1, fell under section 2 of the ordinance, for the reason that that section prohibits the obstruction or incumbering of the street in any manner. The court thereupon directed the complaint to be amended by charging violation of section 2 instead of section 1. The defendant alleges that the granting of this amendment was error.
[1] Under the circumstances of this case, being a trial by the court, there being no substantial dispute upon the facts, all of the evidence upon any theory being before the court, it is considered that it was well within the discretion of the court to direct that the pleading be amended accordingly. We shall not discuss and do not determine whether or not under the evidence the prosecution might have been maintained under section 1. It is manifest that to some extent the sections are overlapping. In the course of its opinion the court said, “The entire ordinance was received in evidence without objections,” and apparently made this the basis of the allowance of the amendment. This is criticised for the reason that, the prosecution having been begun in the municipal court, that court was required to take judicial notice of the ordinance in question, and it was therefore not necessary to offer it in evidence. A fair reading of the decision of the trial court makes it plain that the amendment was allowed pursuant to the provisions of sections 263.29 and 269.44, Wis. Stats. 1929, and was not made because of the admission of the ordinance in evidence without objection. The court said: “It would seem to be an unwarrantable and unjustifiable straining of the rules of practice to require a dismissal of this case, in view of the conclusions reached, because of this unimportant variance and compel a new action to be brought on a complaint
[240 N.W. 404]
simply changed to allege a violation of Section 2.”
[2] This is an action to recover a penalty, and much is said...
To continue reading
Request your trial
-
Darnall v. State, No. 9859
...regulations in the Page 206 public interest and for the promotion of public convenience and necessity. City of Neenah v. Krueger, 206 Wis. 473, 240 N.W. 402. Put another way it has been declared to be a reasonable or convenient access and not access at all points along the highway. Iowa Sta......
-
Voss v. City of Middleton, No. 89-1519
...framed the issue in terms of the exercise of police power in order to promote public safety or convenience. See Neenah v. Krueger, 206 Wis. 473, 476, 240 N.W. 402 (1932). This court has only been asked to interpret the plain and unambiguous terms of a street discontinuance The judiciary's j......
-
Arkansas State Highway Commission v. Union Planters Nat. Bank, No. 5-2004
...place, day or night. The abutter's right of access is subject to the superior public interest. In the Wisconsin case of Neenah v. Krueger, 206 Wis. 473, 240 N.W. 402, 404, the court said: 'However, this right [the abutter's right of access] is in common with most other rights subject to rea......
-
Sprecher v. Weston's Bar, Inc., No. 75-101
...207, 156 N.W.2d 455 (1968); Schneck v. Mutual Service Casualty Ins. Co., 18 Wis.2d 566, 572, 119 N.W.2d 342 (1963); Neenah v. Krueger, 206 Wis. 473, 475, 240 N.W. 402 5 Kennedy-Ingalls Corp. v. Meissner, supra; Schmidt v. Schabow, supra; Gauf v. Milwaukee Athletic Club, 151 Wis. 333, 139 N.......
-
Arkansas State Highway Commission v. Union Planters Nat. Bank, 5-2004
...place, day or night. The abutter's right of access is subject to the superior public interest. In the Wisconsin case of Neenah v. Krueger, 206 Wis. 473, 240 N.W. 402, 404, the court said: 'However, this right [the abutter's right of access] is in common with most other rights subject to rea......
-
Darnall v. State, 9859
...regulations in the Page 206 public interest and for the promotion of public convenience and necessity. City of Neenah v. Krueger, 206 Wis. 473, 240 N.W. 402. Put another way it has been declared to be a reasonable or convenient access and not access at all points along the highway. Iowa Sta......
-
Voss v. City of Middleton, 89-1519
...framed the issue in terms of the exercise of police power in order to promote public safety or convenience. See Neenah v. Krueger, 206 Wis. 473, 476, 240 N.W. 402 (1932). This court has only been asked to interpret the plain and unambiguous terms of a street discontinuance The judiciary's j......
-
Sprecher v. Weston's Bar, Inc., 75-101
...207, 156 N.W.2d 455 (1968); Schneck v. Mutual Service Casualty Ins. Co., 18 Wis.2d 566, 572, 119 N.W.2d 342 (1963); Neenah v. Krueger, 206 Wis. 473, 475, 240 N.W. 402 5 Kennedy-Ingalls Corp. v. Meissner, supra; Schmidt v. Schabow, supra; Gauf v. Milwaukee Athletic Club, 151 Wis. 333, 139 N.......