Watson v. City of Appleton

• Court: Wisconsin Supreme Court
• Writing for the Court: CASSODAY
• Citation: Watson v. City of Appleton, 62 Wis. 267, 22 N.W. 475 (Wis. 1885)
• Decision Date: 03 February 1885
• Parties: WATSON v. CITY OF APPLETON.

62 Wis. 267

22 N.W. 475

WATSON

v.CITY OF APPLETON.

Supreme Court of Wisconsin.

Filed February 3, 1885.

Appeal from circuit court, Outagamie county.

This action was commenced in the circuit court May 18, 1881, for personal injury sustained by the plaintiff March 12, 1879, by reason of a defective sidewalk in the defendant city. The complaint is in the usual form, and, among other things, alleges that March 14, 1879, the alderman of the ward in which the accident occurred, the mayor and clerk of the city, each received personal notice of the accident and injury received; that June 7, 1879, the plaintiff duly filed her claim or demand against the city for the damages she had thereby sustained in the office of said city clerk, and duly presented the same to the said common council for allowance; that said common council then did, and ever since said time has, and still does, refuse to allow said claim or take any action thereon.” The defendant demurred on the grounds (1) that the court had no jurisdiction of the person of the defendant or the subject of the action; (2) that the plaintiff did not state facts sufficient to constitute a cause of action; (3) that the action was not commenced within the time limited by law. The demurrer was overruled, with leave to answer. The defendant then, among other things, answered in effect the plaintiff's legal incapacity to bring the action in the circuit court, by reason of her failure to comply with subchapter 5, c. 47, Laws 1876. On the trial the defendant objected to any evidence under the complaint, which objection was sustained, and the plaintiff excepted. From the judgment of nonsuit entered thereon, the plaintiff brings this appeal.Finch & Barber and John Goodland, for appellant.

Samuel Boyd, for respondent.

CASSODAY, J.

In Sheel v. Appleton, 49 Wis. 125,S. C. 5 N. W. REP. 27, the plaintiffs' claim was never presented to the common council, and, of course, never allowed nor disallowed. In that case there was no question made on the pleadings, and no exception taken to the admission or exclusion of any evidence. The only errors assigned in the printed brief related to the charge of the court and the refusal to give certain instructions. On the oral argument it was urged for the first time that the circuit court had no jurisdiction, by reason of the failure of the plaintiffs to present their claim to the common council of the city. This court held that the charter did not undertake to deprive the circuit court of jurisdiction, but only to regulate the method by which that court should acquire such jurisdiction, and that the defendant had waived all objection to the non-presentation of the claim by joining issue and trying the case upon the merits without objection. None of the questions involved in that case are here presented, and hence the two cases are clearly distinguishable. The waiver in that case was grounded upon the same theory as a waiver of the right of the statute of limitations: by failing to plead it, as in Lockhart v. Fessenich, 58 Wis. 588;S. C. 17 N. W. REP. 302. The several provisions of the city charter here involved were considered in Fleming v. Appleton, 55 Wis. 90;S. C. 12 N. W. REP. 462. As there held, 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. The claim having been presented June 7, 1879, it is evident that the 60 days expired August 6, 1879. Section 28, subc. 5, c. 47, Laws 1876. At that time the right to appeal to the circuit court, as in case of a disallowed claim, accrued and was complete. Id. That right continued for only 30 days thereafter, and hence expired September 6, 1879. Id.; section 27, Id. No appeal having been taken, the charter made such disallowance after September 6, 1879, “final and conclusive, and a perpetual bar to any action in any court founded on such claim.” Section 26, Id. This is the effect of the decision cited. Such finality and conclusiveness, and such statutory bar necessarily operated as an extinguishment of the plaintiff's claim, unless it was waived. Pierce v. Seymour, 52 Wis. 272;S. C. 9 N. W. REP. 71;Lockhart v. Fessenich, 58 Wis. 588;S. C. 17 N. W. REP. 302. Here it was not waived. After the plaintiff's claim had thus been extinguished for more than a year and a half, this action was commenced in the circuit court, and the question is, can it be maintained, notwithstanding this provision of the charter set up in the answer to the contrary?

It is urged that the order overruling the written demurrer was an adjudication to the effect that the complaint was sufficient upon its face, and hence is res adjudicata in this action. Had the defendant declined to answer, and judgment been entered in favor of the plaintiff on the demurrer, and then the defendant had appealed from such judgment, there would have been no doubt but what the order on the demurrer would have been receivable under the express provisions of the statutes, and without any exception having been taken thereto. Sections 2872, 3070; Armstrong v. Gibson, 31 Wis. 61;Hackett v. Carter, 38 Wis. 400;Schattschneider v. Johnson, 39 Wis. 387;Moritz v. Splitt, 55 Wis. 441;S. C. 13 N. W. REP. 555;Doyle v. Gill, 59 Wis. 518;S. C. 18 N. W. REP. 517. The same would have been true had the court sustained the written demurrer, and the plaintiff had declared to amend, and judgment had been in favor of the defendant on the demurrer, and then the plaintiff had appealed from such judgment to this court. Id. Is the...