Town of Ackley v. Town of Vilas

48 N.W. 257, 79 Wis. 157, 1891 Wisc. LEXIS 78

• Court: Wisconsin Supreme Court
• Decided: February 24, 1891
• Status: Published

Opinion

Cassoday, J.

The ordinance dividing the town of Ach-ley, and creating out of a portion of it the town of Vilas, required the indebtedness of the old town to be apportioned between the two towns according to the assessment of 1886. The ordinance followed the mandate of the statute which .required the county board to divide such indebtedness pro rata according to the last previous assessment roll of the old town. Sec. 672, R. S. But in making such division the board departed from the rule thus prescribed, and made the same according to the assessment of 1885. In doing so, however, it is very manifest from the complaint that the town of Vilas is required to pay a considerably less sum than it would have been required to pay had the division been made according to the ordinance and the statute. This being so, it is contended that the defendant is not injured, and hence is in no position to object. The statute expressly requires this court to disregard any error or defect in the pleadings or proceedings, not affecting the substantial rights of the defendant. See. 2829, E. S. This court has frequently refused to reverse by reason of errors or defects not affecting the substantial rights of the adverse party. See cases cited in Sanborn & Berryman’s notes to the section last named. The sole object of allowing an appeal is to benefit the “ party aggrieved.” Sec. 3048, E. S.; McGregor v. Pearson, 51 Wis. 122; Eureka S. H. Co. v. Sloteman, 67 Wis. 126. Counsel insist that the plaintiff’s remedy, if any, is by mandamus, and they cite in support of this contention, Joint Free High School Dist. v. Green Grove, 77 Wis. 532. In that case the statute, if applicable, imposed a simple legal duty upon the officers of the town. The same is true with Waupaca Co. v. Matteson, ante, p. 67. The case at bar is more like Outagamie Co. v. Greenville, 77 Wis. 165, where the statute required the town to reimburse the county for the expenses paid, and hence was the basis of an action. Here the statute requires the new town to “ pay ” its proportion of the indebtedness of the old town; or in other words, to reimburse the original town for any payment made by it in excess of its proportionate share. Sec. 672, E. S. Such statute is the basis of an action to recover a money judgment, especially where, as here, the amount to be recovered is open to controversy. Such actions have been repeatedly maintained. Depere v. Bellevue, 31 Wis. 120; Seymour v. Seymour, 56 Wis. 314; Waupun v. Chester, 61 Wis. 401; Forest Co. v. Langlade Co. 76 Wis. 605.

By the Court.—The order of the circuit court is affirmed.