Woodruff v. Town of Depere

• Decision Date: 18 March 1884
• Citation: 18 N.W. 761,60 Wis. 128
• Parties: WOODRUFF AND OTHERS v. TOWN OF DEPERE, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

60 Wis. 128

18 N.W. 761

WOODRUFF AND OTHERS

v.TOWN OF DEPERE, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed March 18, 1884.

Appeal from circuit court, Brown county.

This was an action to enjoin and set aside certain taxes levied and assessed in the year 1878 on the lands of the plaintiffs in the defendant town. On issue joined and trial had, the court made and filed findings of fact and conclusions of law, June 2, 1882, holding the assessment invalid for reasons affecting the groundwork of the tax and all the property in the town, and thereupon the court immediately stayed all proceedings in such action, until a reassessment of the property of such town could be made. Thereupon, and during the autumn of 1882, the authorities of the town proceeded to reassess the property of the town, and the tax-roll thereon was duly completed by the town clerk October 20, 1882. December 7, 1882, the plaintiffs, without notice to the defendant, procured from a court commissioner an ex parte order, to the effect that the plaintiffs have until December 15, 1882, to file their objections in writing to the reassessment roll claimed to have been made and prepared, pursuant to the order of the court made therein June 2, 1882. That order was based upon affidavits to the effect that the attorneys for the plaintiffs did not learn of such completion until December 5, 1882; that they had several times during the summer made inquiries as to the time when the reassessment would be completed; that they wrote the clerk of the defendant town, making further inquiries, August 11, 1882, and in answer received a letter from him August 15, 1882, to the effect that he had not yet done anything on the tax-roll, and should not begin it until about December 10, 1882, and would complete it about December 25, 1882, if nothing happened to prevent, and that he would notify them when the roll was completed, but never did. December 9, 1882, written objections to the reassessment were filed therein, and December 11, 1882, a copy of the objections to the reassessment was served by the plaintiffs' attorneys upon the attorney for the defendant, who, on the same day, returned such objections to the plaintiffs' attorneys, with the indorsement that the same were received too late--to-wit, more than 20 days after the completion of the tax-roll. December 15, 1882, upon affidavits made, the court made an order to show cause why the objections should not be held to be properly filed, and an issue be joined thereon as provided by statute. The order to show cause having come on to be heard, it was thereupon, and on January 2, 1883, ordered by the court, in effect, that an issue be made up involving said objections by the filing, on the part of the plaintiffs, with the clerk of the court, a supplemental complaint, involving the objections so filed, within 20 days thereafter, and that a copy thereof be served on the attorney for the defendants within the same period; and that the attorney for the defendants have 20 days from the time of such service on him to demur to or answer the same; and that a trial of the issue thus joined be had by the court summarily. The order was served on the defendants January 16, 1883, and they excepted thereto, and from that order the defendant town brings this appeal.Vroman & Sale and J. J. Tracy, for respondents, J. W. Woodruff and others.

W. J. Lander, for appellant, the Town of Depere, impleaded, etc.

CASSODAY, J.

The reassessment was not completed by the clerk until more than four and a half months after it was ordered. The plaintiffs desired to contest the validity of the same, but failed to file their objections thereto within 20 days after its completion, as required. Section 1210 b, as amended by section 5, c. 255, Laws 1879, and chapter 128, Laws 1881. It is claimed that allowing such objections to be filed and served thereafter was error. The statute provides, in effect that the court, or a judge, may, on motion and good cause shown, in his discretion, and upon such terms as may be just, allow any proceeding in an action after its commencement, not excepted therein, to be taken after the time limited by the statute has expired. Section 2831, Rev. St....