Kleimenhagen v. Dixon

• Decision Date: 27 September 1904
• Parties: KLEIMENHAGEN ET AL. v. DIXON, PRESIDENT, ET AL.
• Court: Wisconsin Supreme Court

122 Wis. 526

100 N.W. 826

KLEIMENHAGEN ET AL.

v.DIXON, PRESIDENT, ET AL.

Supreme Court of Wisconsin.

Sept. 27, 1904.

Appeal from Circuit Court, Columbia County; E. Ray Stevens, Judge.

Bill by L. Kleimenhagen and others against J. F. Dixon, as president of the village of Kilbourn, and others. From a decree in favor of plaintiffs, defendants appeal. Affirmed.

The plaintiffs bring this action as taxpayers of the village, for themselves and all others similarly situated, to declare the proceedings of the village board void, and to restrain the board and village officers from taking any further steps in laying a proposed drain which the village board had ordered and directed to be laid in an alley and streets of the village for the alleged purpose of removing the surface water and improving the streets for public use and travel, and from paying any claims presented or to be presented against the village on account thereof, and from levying any tax or including any sum in the general tax levy to cover such claims. The complaint charges that the proceedings of the village board are void, because the village board failed to take the steps prescribed by statute for the construction of a sewer, and which covers this improvement. It also charges fraud on the part of the trustees in authorizing the alleged improvement, in that they were induced to vote for the construction of it to conserve their private interests, and in that it was intended to serve the private uses of adjoining property, and would serve no public benefit or use. It is also alleged that the president of the village board is personally interested with the contractor, who is to furnish material for the improvement. The complaint sets forth the proceedings by the village board from the inception of the undertaking to the final step in ordering the alleged public improvement of the streets and a public alley of the village. The meetings of the village board held May 19, June 4, and June 15, 1903, are specified as those at which the proceedings were taken upon which the village board relied as authorizing the improvement, and it is charged that the resolution purporting to grant such authority failed to receive the support of the requisite number of votes of members of the village board to give it validity. No charge was made before the trial that the meetings were illegally held. Defendants admitted the holding of these meetings, but denied that the proceedings were void upon any of the grounds charged in the complaint, and alleged that the action of the village board in ordering this drain was to remove the surface water from the streets and a public alley of the village. Considerable testimony was taken at the trial upon these issues. The minutes of the proceedings of the village board disclose that the meetings of the board at which this improvement was authorized were neither special nor regular, as prescribed by statute, nor were they adjournments of such meetings, but they were called and held under the direction of the president of the village board, and upon verbal notice to the members given by the marshal. After the taking of the testimony had been concluded, and the case was being argued, counsel for plaintiffs asked leave to amend the complaint by adding an allegation charging that the meetings of the board at which this improvement was authorized were not called and held according to the requirements of the law, and that the action of the board at such meetings was null and void. Defendants objected to such amendment. The ruling of the court upon the motion to amend the complaint was reserved until after the argument on the case. When the decision of the case was announced, the court allowed the amendment of the complaint as asked for by the plaintiffs, upon condition of their paying $10 costs of the motion. Upon the contested issues which had been tried the court resolved all questions favorably to the defendants. The court further found as a matter of fact under the complaint as amended that all the proceedings of the village board in authorizing this drain were void because the necessary steps for calling these meetings were not taken as required by statute. Upon these conclusions judgment was awarded to plaintiffs declaring the proceedings void, restraining all further acts in completion of such drain, and for plaintiffs' costs, amounting to $248.04. This is an appeal from such judgment.

W. N. Stroud, Thomas B. Coon, and J. H. Rogers, for appellants.

Fowler & McNamara, for respondents.

SIEBECKER, J. (after stating the facts).

Error is assigned upon the action of the court in allowing plaintiffs to amend their complaint after the testimony had closed and the issues raised by the pleadings had been fully litigated. The proposed amendment was to the effect that the proceedings of the village board in authorizing the drain were void because the meetings were not called as required by the statutes. It is urged that the amendment was improperly allowed because the complaint alleged that the improvement had been authorized at meetings of the village board, which the answer admitted, and that it should therefore be treated as an accepted fact that the meetings were legally held, and that the parties were irrevocably bound thereby. The trial court did not so interpret the pleadings, and, we think, upon sufficient grounds. True, the complaint sets out that the meetings were held by the village board, and it then proceeds to charge that the proceedings were void in the law for other reasons than the irregularity in the calling or holding of these meetings. Plaintiffs were evidently not aware that the meetings were irregularly held, and they proceeded upon that theory to the stage of the trial when the evidence of the village clerk, taken in connection with the recorded minutes of the meetings, disclosed the fact that no regular call for special meetings had been made. Nothing appears to justify the conclusion that the parties had forfeited the right to such amendment, if the court deemed it “in furtherance of justice” to insert “other allegations material to the case.” The power of allowing amendments to pleadings under the conditions of the statutes has been liberally exercised to enable the parties to...