Lutien v. City of Kewaunee

• Decision Date: 07 January 1913
• Citation: 139 N.W. 312,151 Wis. 607
• Parties: LUTIEN ET AL. v. CITY OF KEWAUNEE ET AL.
• Court: Wisconsin Supreme Court

151 Wis. 607

139 N.W. 312

LUTIEN ET AL.

v.CITY OF KEWAUNEE ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1913.

Appeal from Circuit Court, Kewaunee County; Michael Kirwan, Judge.

Action by Charles Lutien and others against the City of Kewaunee and others. From a judgment sustaining a demurrer to an amended complaint, plaintiffs appeal. Affirmed.

The plaintiffs sought to obtain a judgment declaring invalid certain proceedings under the general city charter law extending the corporate limits of the city of Kewaunee.

Upon a trial objection was made to any evidence under the complaint upon the ground of insufficiency. The objection was sustained and judgment of dismissal entered. On appeal the decision was affirmed. 143 Wis. 242, 126 N. W. 662, 127 N. W. 942. For a statement, in detail, of the facts upon which plaintiffs relied, reference is had to the report of such appeal. The complaint disclosed that the right to question the validity of the proceedings attacked had been extinguished by expiration of the period limited therefor by the general charter law. Section 925--21, Stats. 1898. Upon that ground the judgment was affirmed, subject to the right of the circuit court to permit the case to be opened upon motion based upon an amended complaint showing facts sufficient to avoid the bar of the statute. There was a motion for rehearing, suggesting that the statute limiting the time for challenging the validity of the proceedings was unconstitutional. Various grounds for avoiding the statute were specified, and, among them, that the preliminary publication required by section 925--19, Stats. 1898, was not given, or was improperly given. The motion was denied, it being suggested that if the publication was not made, as claimed, or if any matter of fact existed supposed by counsel for plaintiffs to be sufficient to avoid the bar of the statute, it should be made to appear by amended complaint, as indicated in the opinion and not be presented, originally, in this court as ground for a rehearing.

Thereafter an amended complaint was presented in the court below, and issue as to its sufficiency was joined. It did not set forth any new facts, except that plaintiffs did not discover the town board had neglected and refused to cause the proceedings in question to be challenged as invalid within the statutory time, till after such time had expired; that they were led to believe such action would be taken; that the town officers were fraudulently induced to take the course which they did, and that within a reasonable time after knowledge thereof came to plaintiffs' attention they caused this action to be commenced. The demurrer was sustained.George W. Wing, of Kewaunee, and Cady, Strehlow & Jaseph, of Green Bay, for appellants.

Nash & Nash, of Manitowoc, W. A. Cowell and Emil...