Telford v. City of Ashland

75 N.W. 1006, 100 Wis. 238, 1898 Wisc. LEXIS 224

• Court: Wisconsin Supreme Court
• Decided: June 23, 1898
• Status: Published

Opinion

Winslow, J.

Tbe objection is raised that tbe circuit court bad no jurisdiction of tbis action, because tbe appeal from tbe action of tbe city council was not taken witbin twenty days after sucb action. Tbis objection was not taken in tbe trial court, and bence it is waived unless it goes to jurisdiction of tbe subject matter. Tbe provisions of tbe charter of tbe city of Ashlcmd on tbis subject (cb. 27, Laws of 1889) bave been before tbis court in a number of cases, tbe last of sucb cases being Mason v. Ashland, 98 Wis. 540, where tbe various sections are fully stated. It is sufficient to say here that they provide that no suit of any kind shall be brought against the city in any court, but that tbe claim shall be presented to tbe common council, and that tbe claimant may appeal from tbe council’s adverse action thereon witbin twenty days after sucb action. Tbis court has held that tort actions are included witbin tbis provision (Koch v. Ashland, 83 Wis. 361); also, that tbe failure to appeal witbin tbe prescribed time is a complete bar to tbe claim (Mason v. Ashland, supra).

In tbis case tbe appeal was not taken within twenty days after tbe adverse decision of tbe council, but tbe action was tried without objection on tbis ground in tbe circuit court; and tbe question is whether it can be raised for tbe first time upon appeal in tbis court. Tbis question, as before indicated, depends upon tbe further question whether the objection goes to jurisdiction of tbe subject matter, or only to jurisdiction of tbe person; for it is familiar law that objections to tbe jurisdiction of tbe person are waived by going to trial without raising them in some appropriate manner, while objections to jurisdiction of tbe subject matter are always open. That tbe objection goes to jurisdiction of tbe subject matter seems not doubtful. Tbe jurisdiction of tbe circuit court over tbe subject of tbe action depends upon tbe appeal being duly taken. It can obtain jurisdiction over actions against tbe city in no other way. Tbe case is not essentially different from the case of an attempted appeal from justice’s to circuit court, where it has been frequently held that, if the appeal papers are defective in substance, the circuit court obtains no jurisdiction of the subject matter, and that the objection is not waived by going to trial. Palmer v. Peterson, 46 Wis. 401; Plano Mfg. Co. v. Rasey, 69 Wis. 246, and cases cited. See Bullard v. Kuhl, 54 Wis. 544. It is quite analogous to a case of change of venue, where the proper steps to make the change have not been taken, and where it has been frequently held that consent will not give jurisdiction. Hager v. Falk, 82 Wis. 645; Swan v. Porter, 96 Wis. 34. So far as the decision in Sheel v. Appleton, 49 Wis. 125, is contrary to this doctrine, it must -be considered as overruled.

By the Gov/rt.— Judgment reversed, and action remanded with directions to dismiss the appeal.