Oshkosh Waterworks Co. v. City of Oshkosh
| Decision Date | 27 February 1900 |
| Citation | 106 Wis. 83,81 N.W. 1040 |
| Parties | OSHKOSH WATERWORKS CO. v. CITY OF OSHKOSH. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Winnebago county; Michael Kirwan, Judge.
Action by Oshkosh Waterworks Company against the city of Oshkosh for rental of fire hydrants. Claim disallowed by common council, and plaintiff appeals to the circuit court. From a dismissal of the appeal, plaintiff again appeals. Affirmed.
This is an action to recover for the rental of fire hydrants. The record shows that the appellant, on the 24th day of September, 1898, filed with the city clerk of the city of Oshkosh a verified bill claiming the sum of $5,145 for hydrant rental for the quarter ending October 1, 1898. On the 30th of September the city comptroller recommended the allowance of the bill at $1,911.50. Thereafter the finance committee of the common council of the city of Oshkosh recommended the allowance of the bill at the sum of $4,630.50. The bill was presented to the common council November 10, 1898, and on the same date allowed by the common council at $4,630.50. It was presented to the mayor for approval November 16, 1898, and vetoed by the mayor November 17, 1898, which veto was sustained by the council November 27, 1898, 10 members of the council voting to allow the claim notwithstanding the veto, and 9 members voting in the negative; the charter of the city requiring a two-thirds vote in order to overrule the veto. On the 12th of December, 1898, the appellant served a notice of appeal and a bond upon the city clerk, the bond being conditioned that the appellant would faithfully prosecute this appeal, and pay all the costs that should be adjudged against it in the circuit court of Winnebago county, Wis. This bond was approved by the city attorney and the city comptroller of the defendant city. On the 13th of January, 1899, another notice of appeal and bond was served upon the city clerk, the bond being correct in form, and it was approved by the city clerk and comptroller as to the sufficiency of the sureties on the 17th day of January, 1899, without, however, waiving any objection to the right of the plaintiff to give or file such bond. The respondent moved to dismiss the appeal for lack of jurisdiction, because the appeal was not taken in the manner provided by law, and because the required bond had not been given. Upon this motion the appeal was dismissed, and from that order of dismissal the plaintiff appeals.Hooper & Hooper, for appellant.
John F. Kluwin, for respondent.
WINSLOW, J. (after stating the facts).
The charter of the city of Oshkosh (chapter 59, Laws 1891) provides: “No action shall be maintained by any person against the city upon any claim or demand until such person shall first have presented his claim or demand to the common council for allowance, and the same shall have been disallowed in whole or in part, provided that the failure of such common council to pass upon such claim within sixty days after the presentation of such claim shall be deemed to be a disallowance thereof.” Section 4, subc. 21. “The determination of the common council disallowing in whole or in part any claim shall be final and conclusive and a bar to any action in any court founded on such claim unless appeal be taken from the decision...
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...the city, nor can jurisdiction be conferred by such officers (Telford v. Ashland, 100 Wis. 238, 75 N. W. 1006;Oshkosh Waterworks Co. v. City of Oshkosh, 106 Wis. 83, 81 N. W. 1040); that the bond cannot be amended nor a new bond given after the expiration of the 20 days (Oshkosh Waterworks ......
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