Town of Butternut v. O'Malley

• Decision Date: 10 November 1880
• Citation: 7 N.W. 248,50 Wis. 333
• Parties: THE TOWN OF BUTTERNUT v. O'MALLEY and another
• Court: Wisconsin Supreme Court

7 N.W. 248

50 Wis. 333

THE TOWN OF BUTTERNUT v. O'MALLEY and another

Supreme Court of Wisconsin

November 10, 1880

Argued October 12, 1880

APPEAL from the Circuit Court for Ashland County.

Defendants appealed from an order substituting the town of Butternut for the town of La Pointe as plaintiff in this action.

Order affirmed.

The cause was submitted on the brief of J. J. Miles for the appellants.

W. F Vilas and J. H. Knight, for the respondent.

OPINION

ORSAMUS COLE, J.

This is an appeal from an order of the circuit court substituting the town of Butternut as plaintiff in the action in the place of the supervisors of the town of La Pointe. The occasion or necessity for such substitution will appear on reference to the case of Sup'rs of La Pointe v O'Malley, in 47 Wis. 332. After the judgment in favor of La Pointe in the cause had been affirmed, the county board, by ordinance, vacated and abolished the town of La Pointe, attaching the territory which had theretofore constituted that town to the towns of Ashland and Butternut. The ordinance provided that the town of Butternut should be the successor of the town of La Pointe in the actions in the circuit court pending and prosecuted by and on behalf of the town of La Pointe against O'Malley and another to recover moneys due said town, and of all judgments and other proceedings in such actions. The validity of this ordinance was sustained by this court in the case above cited, where it was held that the ownership of the judgment and the right to appeal from any proceeding therein, had become entirely vested in the town of Butternut. Now, it is very obvious that unless we are prepared to recede from that decision, the order here appealed from must be affirmed, because it is strictly in conformity to that adjudication. We see no reason whatever for changing the decision made.

The learned counsel for the defendants takes some objections to the order, all of which we deem untenable. Both the propriety and necessity of the substitution have already been considered and decided. Counsel suggest that the town board of Butternut had no authority to employ counsel to procure its substitution as plaintiff in the action. But section 819 R. S., to which he refers, gives that authority in the clearest terms. This court has also held that, by force of the ordinance, the town of Butternut became the successor in interest of the town of La Pointe in the...