Town of Ettrick v. Town of Bangor

54 N.W. 401, 84 Wis. 256, 1893 Wisc. LEXIS 42

• Court: Wisconsin Supreme Court
• Decided: January 31, 1893
• Status: Published

Opinion

"WiNSlow, J.

Under the authority of Rhine v. Sheboygan, 82 Wis. 352, Bore Larson was not, under the evidence, a “ poor person,” within the meaning of sec. 1499, R. S., in 1889 and 1890, when he received from the town of Ettrick the sums to recover which this action was brought. This being the case, the plaintiff town should not have recovered for any part of such sums which Larson used for his own support or for his own individual purposes. But there was testimony tending to show that a part, at least, of these moneys was furnished and actually used for the purchase of the necessaries of life for some or all of the adult, weak-minded children, Louisa, Emma, and John. The question arises, Can the plaintiff town recover for that part of the moneys advanced which was actually used for the support of these children? In considering this question it becomes necessary to inquire where the legal settlement of these children was at the time in question. Did it remain in Bamgor, or had it been transferred to Ettrioh?

Although we have decided that the evidence shows that Bore Larson, the father, had ceased to be a pauper in July, 1889, still it must be held that he retained his settlement in Bangor, because he was during his entire residence in Eti/rioh supported therein as a pauper, and consequently, under the terms of the statute (subd. 4, sec. 1500, B. S.), gained no new settlement. His adult children were minors when he left Bangor, and there is testimony tending to show that after they became of age they were supported as paupers at the home of their father, with occasional absences. Under this state of facts, they also retained their legal settlement in Bangor, unless it should appear that any one of them, after becoming of age, and being of sufficient mental strength to be recognized as an accountable member of society, had by a year’s continuous self-supporting absence from home acquired a new and independent settlement. Upon this point the testimony is very meager; upon another trial it should be made more definite. It is claimed that the evidence does not show that these adult children were “ poor persons,” under sec. 1499, B. S. The inferences of poverty and destitution resulting from the evidence are certainly very strong, and we should not disturb the judgment on this ground. But as the evidence does not show how much of the moneys advanced was used by Bore Larson for his own purposes, and how much was used for .the support of the children, we cannot separate the two amounts and direct a judgment, and hence there must be a new trial. If it shall appear upon such trial that any or either of the weak-minded, adult‘children were paupers with legal settlements in Bangor in 1889 and 1890, under the rules above indicated, and that Bore Larson was not of sufficient ability to support them, the plaintiff town would be entitled to recover such part of the advances as were actually expended for the support of such children.

The fact that the town of 'Ett/rick paid the money to Bore Larson alone will not defeat a recovery for so much as actually went to support the children. The evidence tends to show that a part, if not all, of the children were not competent to handle money. The father is undoubtedly the proper person to be intrusted with money for the support of an adult child who is so mentally weak that he cannot understand the uses of money.

We do not regard the fact that the town of Bangor contributed to the support of the family up to July, 1889, as in any way affecting its rights in this action, after it gave notice to the town' of Ettrick that it would discontinue such support; nor do we consider the service of a denial of liability, under sec. 1514, R. S.,¹ as necessary to entitle it to defend the claim of plaintiff. Scott v. Clayton, 51 Wis. 185, 195. It was not necessary that an itemized account or claim be filed with the defendant town, under sec. 824, R. S.,² before the action can be maintained. We regard the special provisions of sec. 1514, R. S., which regulates this entire subject, as inconsistent with the general provisions of sec. 824, and consequently controlling.

By the Court.— Judgment reversed, and cause remanded for a new trial.

1 Sec. 1514, R. S., provides that the supervisors of a town in which a “poor person” has a settlement shall, after notice, remove such poor person to their own town, and pay the expenses incurred in maintaining him from the time of his becoming a charge to the town in which he is maintained; and if the supervisors do not remove him, their town shall be liable for the expenses of maintaining such poor person, so long as he shall remain a public charge, and the town where such person may be may, from time to time, recover the same with costs; “ but if the supervisors receiving such notice shall, within said thirty days, deny in writing the allegations contained therein, and serve such denial on one or more of the supervisors giving the same, an action for such . . . maintenance shall be commenced within three months after the service of such denial, or be forever barred.”

2 “ Sec. 834. No action upon any claim or cause of action, for which a money judgment only is demandable, shall be maintained against any town, unless a statement of such claim shall have been filed with the town clerk, to be laid before the town board of audit, nor until ten days after the next annual town meeting thereafter.”