Green Lake County v. City of Eau Claire

166 N.W. 656, 167 Wis. 304, 1918 Wisc. LEXIS 54

• Court: Wisconsin Supreme Court
• Decided: April 30, 1918
• Status: Published

Opinions

The following opinion was filed March 5, 1918:

BoseNBerRY, J.

It is claimed by the plaintiff that by virtue of the provisions of sec. 2822, Stats., the notice of disallowance • of the claim having been served by mail as provided in sec. 2821, the time within which an appeal might be taken was doubled, pursuant to the provisions of sec. 2822, and that the notice of appeal was served in time. The procedure in matters relating to claims of one municipality against another for aid furnished to poor persons is prescribed by sec. 1512, Stats. 1917. The part thereof material here is as follows:

“The clerk of any town, city or village disallowing any such claim on the part of a county shall, within the same time and in like mánner, give notice of such disallowance and until the same is received by the county clerk the time within which an appeal may be taken from such allowance or an action commenced shall not begin to run. The mailing within such ten days, by the proper officer, of any notice herein provided for, in the manner provided by section 2821 of the statutes, shall be a sufficient service of such notice.”

Sec. 25 of ch. VII of the revised charter of the city of Eau Claire (Laws 1889, ch. 184) reads as follows:

“When any claim of any person, persons, company or corporation against the city shall be disallowed, in whole or in part by the common council, such person, persons, company or corporation may appeal from the decision of the council disallowing such claim to the circuit court of the county of Eau Claire by causing a written notice of such appeal to be served on the clerk of said city within twenty days after the action of said council in disallowing such claim, and executing a bond to the said city with a sufficient surety, to be approved by the clerk, or a court commissioner of Eau Claire county, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant by the court.”

The real question is, of course, Does sec. 2822 apply to appeals taken pursuant to the provisions of the charter of the city of Eau Claire in cases within sec. 1612? Secs. 2821 and 2822 are under the title “Proceedings in civil actions in courts of record.” Good reasons might be given why this section does not apply. We feel, however, that where possible the statutes should be so construed as to protect the rights of parties in furtherance of justice. While an appeal from the disallowance of a claim by the common council of the city of Eau Claire is clearly not a proceeding in a court of record, nevertheless it is the commencement of an action, and the proper way, if not the only way, to proceed against the city, and we think it was the intention of the legislature, in prescribing that notice of disallowance of the claim might be served in the manner prescribed by sec. 2821, that service so made should be followed by the consequences provided in sec. 2822, and that the notice of appeal, therefore, in this case was in time. This seems a natural and reasonable construction, and if it does not conform to the legislative intent the remedy is plain and simple.

It is claimed that Stevens v. Wheeler, 43 Wis. 91, rules this case. In that case there was an appeal from an order overruling a demurrer. It does not appear that there was any notice of entry of the order, but on the evening of the last day for appealing, appellant’s attorney mailed a notice of tbe appeal addressed to tbe clerk of tbe circuit court and to tbe attorneys for tbe respondent, neither of which was received by tbe parties to whom they were addressed. until some five days later. It may be true 'as said, that where a statute or rule requires notice of an act done to be given within a limited time there is no time of service to be doubled and tbe provisions of tbe section in question are wholly inapplicable. But reading that part of sec. 1512 relating to disallowance of tbe claim and notice thereof together with sec. 25 of cb. VII of tbe charter of tbe city of JEclu Glaire, it is plain that tbe time within which tbe appeal must be taken commences to run not from tbe time tbe claim is disallowed, but from tbe time notice thereof is received by tbe county clerk, and that therefore when notice is given by mail, as in this case, the time within which tbe appeal may be taken is forty days and not twenty days, in accordance with the provisions of sec. 2822, Stats.

By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.