City of Platteville v. Bell

• Decision Date: 15 May 1886
• Citation: 66 Wis. 326,28 N.W. 404
• Parties: CITY OF PLATTEVILLE v. BELL.
• Court: Wisconsin Supreme Court

66 Wis. 326

28 N.W. 404

CITY OF PLATTEVILLE

v.BELL.

Supreme Court of Wisconsin.

May 15, 1886.

Appeal from circuit court, Grant county.

Forcible entry and unlawful detainer. April 23, 1883, one Christopher Bell, father of the defendant, made a contract in writing with the plaintiff city to furnish all necessary material and build a city hall for the city on two lots described, in the city, upon a site to be selected by the city, and all according to plans and specifications in the manner described; that any alterations in the design of the building, or quality of materials, or kind or character of labor, should not vitiate the contract; but on due notice the workmen should, if necessary, be increased so as to fully complete the work and deliver the building up to the city in good order for use on or before December 1, 1883, except that if it should be necessary or desirable for Bell, on account of unfavorable weather or other reasonable cause, the inside plastering and finishing work necessarily and properly following the same, not including the main assembly hall and clerk's office therein, might be deferred to a period not later than July 1, 1884, by which day the building was to be fully completed in all particulars according to the terms of the contract. Time was made the essence of the contract, and Bell was to forfeit and pay to the city, as liquidated damages, five dollars per day for every day the work remained unfinished and undelivered, which sum was to be deducted from any amount due and owing on the contract. In case of neglect or refusal to furnish material or do the work or complete the building in time, it was made lawful for the city, by the contract, after having given three days' notice, to employ others to complete the several unfinished parts, and the costs thereof to be deducted from what might be otherwise due on the contract. By the contract, Bell was to receive for such work, labor, and material, and the building fully completed, $20,000, adding to or deducting therefrom for extra work or deductions as therein provided; 80 per cent. of the pro rata value to be paid on monthly estimates of the architect, or from time to time as the work progressed; and the balance, or 20 per cent., when the building should be fully completed as per contract, and so certified by the architect. The defendant entered into partnership with his father, Christopher Bell, for the performance of the contract, and the firm entered upon such performance. In August, 1883, Christopher Bell died; and the defendant thereupon, as surviving partner, continued in the performance of the contract. The building was unfinished July 1, 1884. The city paid 80 per cent. of the estimates as made. Disputes arose as to the balance and as to extra work. Attempts were made at settlement in September, 1884, which failed. The city then sought to obtain possession of the building from the defendant, but failed. November 26, 1884, the city gave the defendant written notice of its intention to build and construct certain incompleted portions of the building. December 1, 1884, the city filed with D. J. Gardner, a justice of the peace in the said city, a complaint in writing, alleging its ownership and possession of the said lots on which the building was situated; the making of the contract, and its terms; the several facts stated; that the building was not completed according to the contract, but was so that it could be occupied and used for municipal purposes; that the city never parted with the exclusive possession; that the city had more than three days since demanded the possession; that the defendant had wrongfully taken the exclusive possession, and wrongfully, unlawfully, and forcibly held and detained the same from the plaintiff, and wrongfully wholly excluded the city, its officers and servants, therefrom; and prayed judgment removing the defendant therefrom. The said justice thereupon issued his warrant against the defendant for such wrongful, unlawful, and forcible detention, and the same was personally served on him December 2, 1884. On the return-day the defendant demurred to the complaint for want of jurisdiction in the justice and other grounds. On the demurrer being overruled, the defendant answered December 8, 1884, admitting that as surviving partner he had completed the building as far as completed; and claiming that he was rightfully and legally in such possession; that the city was owing him for the building and erection $5,400 over and above all proper deductions, and alleging that until the same was paid, or properly settled, agreed upon, and adjusted, he was entitled to hold and continue in such possession; and that he held the title to said city hall, and was rightfully and legally entitled to the possession thereof. The answer also denied the jurisdiction of the justice to try or determine the action, and also a general denial except as admitted. At the same time the defendant filed with the justice a bond as upon plea of title. The justice declined to certify the cause, and thereupon the same was tried, resulting in a verdict for the plaintiff, upon which judgment of restitution was duly entered. From that judgment the defendant appealed to the circuit court, where the cause came on for trial, when the defendant moved to dismiss the cause for want of jurisdiction, which was denied. The cause was thereupon tried in the circuit court, and February 12, 1885, the jury, under the direction of the court, returned a verdict to the effect that the allegations of the complaint were true; that the defendant was guilty thereof; and that the city ought to have restitution of the premises therein described without delay; whereupon the court fined the defendant five cents. Thereupon judgment was entered accordingly, from which the defendant brings this appeal.Carter & Cleary, for respondent, City of Platteville.

Bushnell & Watkins, J. W Murphy, and A. W. Bell, for appellant, Archibald W. Bell.

CASSODAY, J.

It is claimed that the justice had no jurisdiction. The premises in question were within the city. This being so, the statute required that the party complaining should proceed by action before a justice of such city. Section 3362. It is claimed that Mr. GARDNER was elected a justice of the peace by the town, and not by the city. He testified, in effect, that he was a justice of the peace of the town; that he was elected justice of the peace of the city in March, 1882; that his term as city justice commenced the first Monday of May, 1882, and expired the first Monday of May, 1884; that in March, 1884, one Harry Rountree was elected as his successor; that said Rountree told him he would not qualify, and never demanded the docket of him, and that it was still in his hands; that he supposed he held over till his successor qualified; that there was no city justice except him; that he resided and kept his office in the city when this action was commenced; that he was town justice when he was elected city justice; and that he was then serving his second term as town justice, and that it would expire in May, 1885. This testimony was undisputed. The city charter provided that among the elective officers of said city should be one justice of the peace; that said justice of the peace should hold his office for the term of two years from and after the first Monday in May succeeding his election; that such justice of the peace should be chosen at the first election under the charter, and biennially thereafter; and that such justice of the peace should have the same jurisdiction and perform all the duties of a justice of the peace elected in towns, as provided by Gen. St. § 4, subc. 1, and section 10, subc. 4, c. 83, Laws 1880. The charter nowhere said that such justice should hold his office until his successor was elected and qualified. But the constitution provides that “the electors of cities and villages, at their charter elections, shall, in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be for two years, and...