Wentworth v. Town of Summit
| Decision Date | 08 April 1884 |
| Parties | WENTWORTH v. TOWN OF SUMMIT. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Waukesha county.
Small & Kurtz, for appellant, William Wentworth.
Parks & Thompson, for respondent, Town of Summit.
This is an appeal from an order of the circuit court sustaining a demurrer to the plaintiff's complaint. The action was brought by the appellant to recover damages against the town of Summit, respondent, on account of an injury alleged by the plaintiff to have been received by him by reason of a defect in a bridge in a public highway in said town. The town demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The circuit court sustained the demurrer, and made a further order dismissing the plaintiff's complaint, in the following words: “And no application having been made by plaintiff to amend his complaint, therefore, on motion of defendant's counsel, ordered, that said demurrer be and is hereby sustained with ten dollars costs, and the said complaint be and is hereby dismissed.” We think the circuit court properly sustained the demurrer to the complaint.
The defect in the complaint is that it does not allege that within 90 days after the accident happened which caused the damage the plaintiff caused a notice in writing to be given to one of the supervisors of the town of Summit, stating the place where such damage occurred, and describing generally the insufficiency or want of repair which occasioned it, as required by section 1339, Rev. St. 1878. This court has repeatedly held that, in an action against a town to recover damages for an injury resulting from a defect or want of repair of a highway or bridge in such town, the complaint must show that the notice required by said section has been given, or it fails to state a cause of action. Susenguth v. Town of Rantoul, 48 Wis. 334;S. C. 4 N. W. REP. 328;Plum v. Fond du Lac, 51 Wis. 393;S. C. 8 N. W. REP. 283;Benware v. Town of Pine Valley, 53 Wis. 527;S. C. 10 N. W. REP. 695. These cases are conclusive as to the insufficiency of the complaint.
The learned counsel for the appellant does not claim that the complaint shows that the notice required by section 1339, Rev. St., was given, but argues that because it shows that the plaintiff presented or filed his claim for damages with the town clerk, no notice was required to be given to the supervisors, under section 1339. We think this argument is fallacious. The filing of the plaintiff's claim for damages with the town clerk, as prescribed by section 824, Rev. St., is required for an entirely different purpose from that which is...
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...is a condition precedent without which plaintiff may not maintain his action. (Reining v. City of Buffalo, 102 N.Y. 308; Wentworth v. Town of Summit, 60 Wis. 281; Gay City of Cambridge, 128 Mass. 387; Plum v. City of Fond du Lac, 51 Wis. 353.) N. C. Abbott, also for plaintiff in error. Mock......
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