Seeger v. City of Ashland

• Decision Date: 10 January 1899
• Citation: 101 Wis. 515,77 N.W. 880
• Parties: SEEGER v. CITY OF ASHLAND.
• Court: Wisconsin Supreme Court

101 Wis. 515

77 N.W. 880

SEEGER

v.CITY OF ASHLAND.

Supreme Court of Wisconsin.

Jan. 10, 1899.

Appeal from circuit court, Douglas county, A. J. Vinje, Judge.

Action of William Seeger against the city of Ashland. From a judgment for plaintiff, defendant appeals. Reversed.

The plaintiff on August 16, 1894, filed with the city clerk of Ashland claim for injury at the hands of a mob on one of the streets in said city. No action was taken upon said claim until October 23, 1894, when the council voted to disallow it. On November 10th the plaintiff gave notice of appeal, accompanied by an undertaking, filed copies thereof in the circuit court for Ashland county, and thereafter filed complaint in due form, to which the defendant answered a general denial, without raising objection either to the time of taking the appeal or to the sufficiency of the appeal papers. After the venue of the case had been changed to Douglas county, the defendant, then represented by a different attorney,filed a motion in writing to dismiss the plaintiff's appeal upon the grounds--First, that the court had no jurisdiction of the defendant; second, that the court had no jurisdiction of the subject-matter of the action; and, third, that no sufficient bond was given upon appeal. That order was denied, and exception taken. Upon the case coming to trial, the defendant objected to the introduction of any evidence under the complaint, and asked for judgment of nonsuit, on the grounds, among others--First, that the court had no jurisdiction of the person of the defendant; and, second, that the court had no jurisdiction of the subject-matter,--which were overruled and excepted to. Trial was had, and judgment for the plaintiff, from which the defendant appeals.

E. E. Brossard, for appellant.

Cate, Sanborn, Lamoreux & Park, for respondent.

DODGE, J. (after stating the facts).

That an appeal within 20 days after the disallowance of a claim against the city of Ashland is a jurisdictional requirement, and that a failure to so appeal is not waived by pleading to the merits, as would be a statute of limitations, is settled, and needs no further argument. Telford v. City of Ashland (Wis.) 75 N. W. 1006. The question presented here is whether the present appeal is within that statutory limit. It was taken more than 20 days after the expiration of 60 days from the filing of the claim with the common council, but less than 20 days after a later express vote of disallowance thereof. The language of the charter provision of Ashland has been before this court in numerous cases recently, and is set out fully in Mason v. City of Ashland, 98 Wis. 540, 74 N. W. 357. In Fleming v. City of Appleton, 55 Wis. 90-92, 12 N. W. 463, this court, construing similar provisions in the charter of the city of Appleton, said: “Under the charter, nonaction upon the claim for 60 days after its presentation is as much a decision of disallowance as an affirmative vote to that effect. The failure during such period to allow, in whole or in part, was, by force of the statute, a determination of disallowance, from which an appeal could be taken.” In Watson v. City of Appleton, 62 Wis. 267-269, 22 N. W. 476, the court says: “The neglect or refusal of the common council to act upon the plaintiff's claim for 60 days after it was presented must be deemed and taken to be a disallowance of the claim. * * * At that time the...