Hooker v. Vill. of Brandon

• Decision Date: 05 November 1889
• Citation: 75 Wis. 8,43 N.W. 741
• Parties: HOOKER ET AL. v. VILLAGE OF BRANDON.
• Court: Wisconsin Supreme Court

75 Wis. 8

43 N.W. 741

HOOKER ET AL.

v.VILLAGE OF BRANDON.

Supreme Court of Wisconsin.

Nov. 5, 1889.

Appeal from circuit court, Fond du Lac county.

Eli Hooker and Culver E. Hooker, pro se.

Sutherland & Sutherland, ( Geo. E. Sutherland, of counsel,) for respondent.

TAYLOR, J.

This is an action by the plaintiffs and appellants to recover of the respondent the value of certain legal services performed by the plaintiffs for the respondent village, and for money disbursed by the plaintiffs on behalf of said respondent, in carrying on certain legal proceedings. This action was commenced early in the year 1885. After the plaintiffs had served their complaint therein, and before the time to answer had expired, they served an amended complaint. To this amended complaint the defendant demurred, setting up all the statutory grounds of demurrer, and several in addition thereto. On the 19th of September, 1885, this demurrer was heard by the court, and the demurrer to the complaint, and to the whole thereof, was sustained, with leave to the plaintiffs to amend their complaint within 20 days, upon payment of $10 costs, to the defendant. Thereupon a second amended complaint was made and served in the action. To this amended complaint the defendant again demurred. This demurrer was overruled by the court by an order dated November 15, 1887, and afterwards the defendant, on the 3d of January, 1888, tendered judgment to the plaintiffs in the sum of $250. This tender of judgment was not accepted, and the defendant answered, admitting that the plaintiffs were employed by the defendant as alleged in their complaint, but denied the value of the services, and the amount of the alleged disbursements. By stipulation of the parties the case was referred to P. H. Martin, as referee, to hear, try, and determine the case. Upon the hearing before the referee the plaintiffs asked to be permitted to again amend their complaint by inserting, in substance, what was omitted from the first amended complaint when the second amended complaint was made and served, so that the proposed amended complaint would be, in substance, the same as that to which the defendant's demurrer was sustained by the court. The referee and the court below refused to permit this last amendment, on the ground, among others, that the proposed amendment to the complaint was to insert a supposed cause of action to which the demurrer of the defendant had been sustained as not stating a cause of action, and that no appeal had been taken from such order of the court sustaining such demurrer, and so the matter was res adjudicata in the action. On the trial the referee found in favor of the plaintiffs for the sum of $324.22. The plaintiffs excepted to the findings of fact and conclusions of law. The only complaint made against the findings of fact is that the referee did not allow a sufficient amount for the value of plaintiffs' services, and not enough for their disbursements made on behalf of the defendant.

On the hearing in this court the learned counsel for the appellants claims the right to review the decision of the trial court in sustaining the demurrer to the first amended complaint. To this claim there are two objections:

First. The plaintiffs did appeal to this court from said order sustaining the demurrer of the defendant to their amended complaint, and this court dismissed such appeal on the ground that they had waived their right to appeal from such order by filing an amended complaint after the order was made. See Hooker v. Village of Brandon, 66 Wis. 498, 29 N. W. Rep. 208. This decision, according to all the authorities, is res adjudicata in this case.

Second. If the plaintiffs have waived their right to appeal from the order sustaining a demurrer to their complaint, by filing an amended complaint in the action, upon which they ask the court to proceed to judgment, it follows that they have no right to question the order sustaining such demurrer upon an appeal from the judgment obtained on such amended complaint. As is said by this court in the opinion dismissing the plaintiffs' appeal, “by amending their complaint, they abandon in their action all claim for any matters not contained in such amended complaint.” They are estopped, therefore, from making any further claim in such action on account of those matters which are omitted from such amended complaint. This court has held that when a demurrer to a complaint, or to an answer, has been overruled, the party demurring may answer to the pleading demurred to, and by so doing he does not waive his right to review the order of the court overruling such demurrer. Supervisors v. Walbridge, 36 Wis. 643;Armstrong v. Gibson, 31 Wis. 61;Tronson v. Lumbering Co., 38 Wis. 202;McKinney v. Jones, 55 Wis. 39, 11 N. W. Rep. 606, and 12 N. W. Rep. 381;Moritz v. Splitt, 55 Wis. 441, 13 N. W. Rep. 555. These cases are not in conflict with the rule stated in Hooker v. Village of Brandon, supra. In the cases cited the party demurring abandons no right by pleading over after his demurrer is overruled, but the plaintiff to whose complaint a demurrer is sustained, by filing a new and amended complaint, and thereby asking of the court the privilege of proceeding to judgment upon such amended complaint, clearly abandons his right to be heard in that action in respect to those matters omitted from such amended complaint. In such case, if the plaintiff insists upon his right to recover upon a supposed cause of action, which the court holds is no cause of action, he must let his complaint stand as his complaint in the action, and either suffer judgment to go against him on the demurrer and then appeal from that judgment, or appeal directly from the order sustaining the demurrer. The plaintiffs cannot be heard upon this appeal to question the correctness of the decision of the demurrer by the court below. That the attempt of the plaintiffs to amend their complaint on the trial, so as to reinstate the cause or causes of action which had been decided bad upon demurrer, was properly refused, is manifest, and needs no further comment.

Upon the trial before the referee the plaintiffs offered in evidence their books of account as evidence of services performed and of money paid by them for their expenditures while performing services for the defendant. The defendant objected to the books as evidence in favor of the plaintiffs for any purpose. The referee admitted the books to prove all charges therein, except the charges for disbursements and expenses made or paid by Eli Hooker. Eli Hooker was not a witness on the trial. His health of body and mind was such as prevented him from appearing and testifying in the case. The plaintiffs excepted to the ruling of the referee excluding the books as evidence of the charges made by Eli Hooker for disbursements and expenses. This ruling is assigned as error upon this appeal. Whether this ruling was made by the referee on the ground that money paid out by the plaintiffs in transacting business for the defendant was not such a charge as could be proved by the introduction of their books of account, or upon the ground that C. E. Hooker, who was not present when such expenditures were claimed to have been made by Eli Hooker, could not make the proper proofs, under the statute, to make such books evidence of such charges, does not appear from the record. Sections 4186, 4187, Rev. St., prescribe under what conditions and proofs the account-books of a party to an action may be received in evidence in his favor. The last clause of section 4187 reads as follows: “Provided, that such books mentioned in this and the preceding section shall not be admitted as testimony of...