Telford v. City of Ashland

• Decision Date: 23 June 1898
• Citation: 75 N.W. 1006,100 Wis. 238
• Parties: TELFORD v. CITY OF ASHLAND.
• Court: Wisconsin Supreme Court

100 Wis. 238

75 N.W. 1006

TELFORD

v.CITY OF ASHLAND.

Supreme Court of Wisconsin.

June 23, 1898.

Appeal from circuit court, Ashland county; E. W. Helms, Judge.

Action by Anna Telford against the city of Ashland. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The plaintiff was a lot owner in the city of Ashland, and brought this action for an alleged illegal grading of the street in front of her lot. She filed her claim with the city clerk March 11, 1896. On April 21, 1896, the common council disallowed the claim; and, on May 29th following, she filed her notice of appeal to the circuit court, and bond, as required by the charter of the city, whereupon the papers were transmitted to that court. Formal pleadings were then made by the parties, the complaint alleging, among other things, that she had taken her appeal within the time limited by the charter, and the answer admitting that the plaintiff duly appealed. The action was tried, and resulted in a verdict in substance for the plaintiff, upon which judgment was rendered in her favor for $1,035, damages and costs, and the defendant appeals.

E. E. Brossard, for appellant.

Gleason & Sleight, for respondent.

WINSLOW, J. (after stating the facts).

The objection is raised that the circuit court had no jurisdiction of this action, because the appeal from the action of the city council was not taken within 20 days after such action. This objection was not taken in the trial court, and hence it is waived, unless it goes to jurisdiction of the subject-matter. The provisions of the charter of the city of Ashland on this subject (chapter 27, Laws 1889) have been before this court in a number of cases, the last of such cases being Mason v. City of Ashland (present term) 74 N. W. 357, where the various sections are fully stated. It is sufficient to say here that they provide that no suit of any kind shall be brought against the city in any court, but that the claim shall be presented to the common council, and that the claimant may appeal from the council's adverse action thereon within 20 days after such action. This court has held that tort actions are included within this provision (Koch v. City of Ashland, 83 Wis. 361, 53 N. W. 674); also, that the failure to appeal within the prescribed time is a complete bar to the claim (Mason v. City of Ashland, supra). In this case the appeal was not taken within 20 days after the adverse decision of the council, but the action was tried without objection on this ground in the circuit court; and the question is whether it can be raised for the first time upon appeal in this court....