Rusk v. Bank of La Farge

201 N.W. 762, 185 Wis. 454, 1925 Wisc. LEXIS 111

• Court: Wisconsin Supreme Court
• Decided: January 13, 1925
• Status: Published

Opinion

Rosenberry, J.

The plaintiff’s theory of this case seems to be that having served a notice as required by sec. 3347dd, Stats., thereby bringing into existence certain rights against the funds remaining in the hands of Monroe county, this proceeding is an action in equity, under the general equity jurisdiction of the court, for the purpose of having the rights of the parties to the fund in question determined and adjudged. The defendant bank, on the other hand, contends that it is an equitable action brought pursuant to the provisions of sec. 3347dd and not under the general equity jurisdiction of the court, and that it cannot therefore be maintained unless the conditions of the statute have been complied with. Sec. 3347dd is set out in the margin.¹

It is apparent that in the absence of the statute the plaintiff would have no standing in a court of equity, for there would be no basis upon which he might claim any interest in the fund remaining in the hands of Monroe county. The funds were not subject to garnishment. Buffham v. Racine, 26 Wis. 449; Burnham v. Fond du Lac, 15 Wis. 193; Merrill v. Campbell, 49 Wis. 535, 5 N. W. 912.

On behalf of the plaintiff it is contended that there being no allegation in the complaint that the contractor disputed the claims of the laborers or materialmen, sub. 3 of the section does not apply. This is too literal a reading of the statute. By sub-. 1 it is provided:

“It shall be the duty of such officer so-notified to withhold a sufficient amount to pay such claim until it is admitted or established as provided in subsection 3 of this section and thereupon to pay the amount,” etc.

The fact that it is necessary to bring the action shows that there is a “dispute” within the meaning of sub. 3. Certain it is that the claim is not admitted, and the only other alternative under the statute is a dispute. The doctrine of Saxville v. Bartlett, 126 Wis. 655, 105 N. W. 1052, applies here. A new right was created and the means by which it should be enforced wére specified. These are exclusive, and in order to entitle the plaintiff to assert his statutory right he must proceed in the statutory manner within the time therein limited. It appears that this action was brought by service of summons and complaint on March 7, 1924, which is more than three months after service of the notice and is therefore not within the time limited by law. For many years, as declared in the cases cited, it was considered contrary to sound public policy to permit funds of a municipal corporation to be impounded for the benefit of private parties. A departure from this policy as provided by sec. 33A7dd was carefully limited, and claimants were required speedily to bring an action in order that the whole matter might be determined. There are therefore special reasons in this case for applying the rule that where a new right is created and a remedy given, that remedy is exclusive.

It is also considered that the provision of sec. 3347cW requiring such actions to be begun in the circuit court of the proper county is exclusive and is not modified by the language of special statutes conferring jurisdiction upon municipal and other inferior courts. The circuit court is a court of broad, general jurisdiction. Many of the municipal and county courts exercising civil jurisdiction have a very limited jurisdiction. Cases might'readily arise in which the court might be embarrassed in determining the rights of all parties. To avoid that and secure a speedy determination, the circuit court was specifically designated. We are therefore of the opinion that the statute means what it says,— that actions to enforce rights arising under sec. 3347cW should be begun in the circuit court of the proper county. For the reasons stated, the court should have sustained the demurrer of the defendant Bank of La Large.

By the Court. — The order appealed from is reversed, with directions to the lower court to sustain the defendant’s demurrer and for further proceedings according to law.

1 Materials to contractors on public improvements. Section 3347dd.

1.Any person, firm or corporation furnishing any material, apparatus, fixtures, machinery or labor to any contractor for public improvements in this state, except in cities of the first class, however organized, shall have a lien on the money, or bonds, or warrants due or to become due such contractor for such improvements; providing, such person, firm or corporation shall, before the payment is made to such contractor, notify the officials of the state, county, township, city, or municipality, whose duty it is to pay such contractor, of his claim by written notice. It shall be the duty of such officer so notified to withhold a sufficient amount to pay such claim until it is admitted or established as provided in subsection 3 of this section and thereupon to pay the amount thereof to such person and such payment shall be a credit on the contract price to be paid such contractor. Any officer violating the duty hereby imposed upon him shall be liable on his official bond to the person serving such notice for the damages resulting from such violation which may be recovered in an action at law in any court of competent jurisdiction. 'There shall be no preference between the persons serving such notice, but all shall be paid pro rata in proportion to the amount under their respective contracts.

2. Whenever practicable, service of the notice provided for in subsection 1 shall be made both upon the clerk and treasurer of the municipality. In case any portion of the money due the contractor is payable by the state of Wisconsin notice of aforesaid may be served by registered mail upon the state highway commission.

3. In any case where the contractor shall dispute the claim of the laborers or materialmen the right to a lien and to the moneys in the hands of the officer shall be determined by equitable action in the circuit court of the proper county; provided, that such action must be brought within three months from the time of serving the notice or notices required by subsection 1 of this section, and notice of bringing such action filed with the officers with whom the claim is filed, otherwise such rights shall be barred. No claim heretofore filed under this section shall be valid after December 31, 1923, unless an action has been brought and notice of bringing such action filed as required by this subsection.