Van Frachen v. City of Ft. Howard

• Decision Date: 13 November 1894
• Parties: VAN FRACHEN v. CITY OF FT. HOWARD.
• Court: Wisconsin Supreme Court

88 Wis. 570

60 N.W. 1062

VAN FRACHEN

v.CITY OF FT. HOWARD.

Supreme Court of Wisconsin.

Nov. 13, 1894.

Appeal from circuit court, Brown county; Samuel D. Hastings, Jr., Judge.

Action by Mary Teresa Van Frachen against the city of Ft. Howard for personal damages. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover for personal injuries to the plaintiff caused by a defective sidewalk in the defendant city. In the notice to the city of the accident, the place of the accident was described as being on the east side of Chestnut street, “between Dousman and Hubbard streets, and opposite the property owned by Platten Bros., and about 21 feet from the north corner of the barn occupied by said Platten Bros.”; and the defect claimed was described as “an unsound, defective, and dangerous condition.” There was some controversy in the testimony whether the notice described truly the place of the accident. The evidence showed that the planks and stringers of the sidewalk were rotten. The plaintiff filed a notice and claim of damages with the clerk of the defendant city. The claim was disallowed by the common council. The plaintiff appealed, from the order disallowing the claim, to the circuit court for Brown county. There was a verdict for the plaintiff. From a judgment on that verdict the defendant appeals.L. A. Calkins, for appellant.

Wigman & Martin, for respondent.

NEWMAN, J. (after stating the facts).

In limine is the objection that the circuit court had no jurisdiction to try the case. It is claimed that there was no authority of law to bring the case into the circuit court by an appeal from the action of the common council. Ordinarily, an action for such a cause must be brought in the ordinary way,--by the service of a summons and complaint,--in order that the court may obtain jurisdiction to try it. In an ordinary case this is necessary in order to give the court jurisdiction either of the parties or of the subject-matter. But it is competent for the legislature to provide for bringing both the parties and the subject-matter before the court by some different proceeding. This, it is claimed, the legislature has done. The charter of the city of Ft. Howard provides (chapter 420, Laws 1891, subc. 5, § 6): “No action shall hereafter be maintained by any person against the city of Fort Howard, upon any claim or demand of whatsoever nature other than a city bond or order, unless such person shall have first presented such claim or demand to the common council of the city. The determination of the common council, disallowing in whole or in part any such claim or demand, shall be final and conclusive, and a perpetual bar to any action in any court, founded on such claim or demand, unless an appeal shall be taken from the decision and determination of said common council” to the circuit court for Brown county. The term “claim or demand,” without other words of explanation or expansion, is held to include only claims and demands arising upon contract, and does not include any cause of action arising from a tort. Kelley v. Madison, 43 Wis. 638;Bradley v. City of Eau Claire, 56 Wis. 168, 14 N. W. 10;Vogel v. City of Antigo, 81 Wis. 642, 51 N. W. 1008. This is an action arising from a tort, and is not included in this provision of the charter of the defendant, unless it shall be held that the words, “of whatsoever nature,” were used by the legislature with the intention to enlarge the meaning of the term “claim or demand” so as to include causes of action arising from torts. It may not be entirely clear what the legislature intended by the use of the words “of whatsoever nature.” The meaning of the words in that connection may be ambiguous. But the legislature intended them to have some force and meaning. Harrington v. Smith, 28 Wis. 43-67. They were absent from the defendant's charter, as originally enacted. Laws...