Weeden v. City of Beloit
| Decision Date | 04 February 1964 |
| Parties | Lyle A. WEEDEN, Taxpayer, Individually and as representative of a class, Appellant, v. CITY OF BELOIT, a municipal corporation, Respondent. |
| Court | Wisconsin Supreme Court |
Clyde E. Sheets, Milwaukee, for appellant.
Garrigan, Keithley, O'Neal, Dobson & Elliott, Beloit, for respondent.
It is undisputed that plaintiff was an owner of real estate taken by the city under the provisions of ch. 32, Stats.; that a jurisdictional offer was served; and that this action was commenced more than 40 days after service of the jurisdictional offer. Sec. 32.06(5), Stats., provides a remedy for an owner who desires to contest the right of the condemnor for any reason other than inadequacy of the amount of the offer. He may bring an action within 40 days from the date of service of the offer. The remedy is exclusive, for the statute provides:
* * *' 1
It is clear enough that in the instant action plaintiff will seek a declaration that the city had no authority to take his property. This is true even though his wife and co-owner is not a party, even though he purports to act on behalf of others as well as himself, and even though it is conceivable that he might frame a complaint which would attack the validity of expenditures by the city on some ground which would not affect the validity of the taking of the property described in his affidavit. He did assert ownership of the described property in his affidavit, and said nothing to limit the action to other issues.
We consider that because of the lapse of time, sec. 32.06(5), Stats., deprives the court of jurisdiction to hear the action with its intended scope.
Sec. 326.12(6), Stats., authorizes the court or judge to limit the subjects of discovery needed to plead. A court will wholly deny the examination when from the statement of the nature and object of the action it affirmatively appears that the plaintiff has no cause of action. 2 Such powers are sparingly used, but afford protection against the abuse of this type of discovery procedure. If the action were not dismissed and if the plaintiff were unable to state a cause of action, he would either fail to file a complaint upon demand, or a demurrer to it would be sustained. If he could state a cause of action, but an unassailable affirmative defense exists, defendant would obtain summary judgment. Dismissal of the action...
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Falkner v. Northern States Power Co.
...(1958), p. 3; Fifth Draft, pp. 10, 23. Wis. Stats. Annot., Vol. 4A, Notes to 1959 Revision, pp. 289, 310.2 Weeden v. Beloit, 22 Wis.2d 414, 126 N.W.2d 54 (1964). Under prior law, the owner had two alternatives. The owner could appeal from the award of the commissioners pursuant to sec. 32.1......
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