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McCue vs. The City of Waupun.
sec. 60 the time to appeal from such disallowance is limited to twenty days after making such decision or disallowance. The amendment to said sec. 58 consisted wholly of incorporating in the section the words above in italics, “of any kind or character whatsoever.” These statutory provisions became and were, at the time of the disallowance of the plaintiff's claim, a part of the charter of the defendant city. The provisions of sec. 58, thus adopted, as at first enacted and before amended as above stated, were substantially the same as those of the charter of the city of Madison, construed in Kelley v. Madison, 43 Wis. 638, where the general meaning of the words “any claim or demand” was held to be so limited and restrained by other provisions of the charter in respect to the filing and allowance of accounts or demands that these words could not be held to include a cause of action in tort, and a more limited meaning was accordingly given to them. But for the amendment to sec. 58, by which the phrase "any claim or demand” was extended so as to read “any claim or demand of any kind or character whatsoever," this case would be ruled by that of Kelley v. Madison, supra. The section, as thus amended and adopted by the defendant, is very broad and comprehensive, and was evidently designed to change the rule of Kelley v. Madison, and to bring within its language claims or demands founded upon tort, thus restoring the general meaning assigned to the words “claims or demands," as shown by the authorities cited by Mr. Justice Cole in that case (page 644). According to Lord COKE, as appears in Vedder v. Vedder, 1 Denio, 261, the word demand “is the largest word in law except claim; and a release of demands discharges all sorts of actions, rights, and titles, conditions before or after breach, executions, appeals, rents of all kinds, covenants, annuities, contracts, recognizances, statutes and commons. Bac. Abr. * Release' (I); Litt. sec. 508; Co. Litt. 291b; Edward Altham's Case, 8 Coke, 148a.” A similar effect was ascribed in
McCue vs. The City of Waupun.
Sheel v. Appleton, 49 Wis. 126, to a provision that “no action shall be maintained by any person against the city, upon any claim or demand of any kind whatsoever, whether arising from contract or otherwise." In Koch v. Ashland, 83 Wis. 361-363, the provision was: “No suit of any kind, or any claim of any character, shall be brought against the city, but the claimant shall file his claim with the city clerk," and an appeal was given to the circuit court in case he was aggrieved by its disallowance; and it was held that an independent action upon a claim founded in tort could not be maintained. It will be observed that the statute, as amended, extends to any claim or demand “of any kind or of any character whatsoever.” Before this amendment, a claim or demand founded in tort was not within the statute. The entire purpose of the amendment was to make the statute applicable to claims or demands founded in tort as well as on contract. Van Frachen v. Ft. Howard, 88 Wis. 570. The evident policy of the act was to secure to the common council, before litigation should ensue, an opportunity for a full official examination of the merits of an important class of cases, that litigation might be avoided by timely action. To say that such claims are not within the statute as amended is to render the clear and comprehensive language of the amendment void of purpose and without effect. When the plaintiff's claim was disallowed, he had the full statutory period of twenty days within which to appeal, but he failed to avail himself of this privilege. After the expiration of that period, he brought his action, and the defense insisted on by answer was that his action was barred by reason of his failure to appeal, and this was a valid answer in bar. Watson v. Appleton, 62 Wis. 267; Koch v. Ashland, 83 Wis. 361.
The failure of the court to find on the plea in abatement, effect having been properly given to the same matter in bar, cannot be regarded as an error prejudicial to the plaintiff. A formal finding, sustaining the answer in abatement, would
Randles vs. Waukesha County.
have served no beneficial purpose when the same matter was an absolute bar upon the merits. The alleged error does not affect the substantial rights of the plaintiff, and furnishes no ground for reversal of the judgment. R. S. sec. 2829.
It follows that the judgment of the circuit court was rightly given for the defendant.
By the Court.— The judgment of the circuit court is affirmed.
RANDLES, Respondent, vs. WAUKESHA County, Appellant.
June 12 – June 24, 1897.
Counties: Liability for horse taken by sheriff.
A county is not liable for the value of a horse which had been taken
from its owner by the sheriff while in pursuit of a felon for whose arrest he had a warrant, and had been overdriven and injured in the pursuit.
APPEAL from a judgment of the circuit court for Waukesha county: Warham Parks, Circuit Judge. Reversed.
The undersheriff of Waukesha county had a warrant for the arrest of a man who was charged with robbery. The felon fled and the officer pursued. The officer's horse failed. He took the plaintiff's horse, continued the pursuit, and overtook the felon. In the pursuit, the plaintiff's horse was overdriven and injured. The plaintiff brought action against the county for the value of the horse, and recovered judgment. The county appeals.
T.W. Parkinson, for the appellant.
NEWMAN, J. This, surely, must be a case of first impression, for no precedent for it is found. It has never been supposed that any duty rested on the county to furnish the
Clune vs. Wright and another.
sheriff's officers with horses to ride or drive in the service of process. It has usually been understood that such officers took their offices cum onere, and furnished their own conveyance.
The officer, in making this arrest, was not the servant of the county, and the county is not liable for his action. He was engaged in a service due to the general public, and of no particular interest to Waukesha county, as a political organization. Kuehn v. Milwaukee, 92 Wis. 263, and the cases cited. In such cases the county is not liable for the acts of its officers, unless such liability is put upon it by some statute. No statute declares a liability for such an act as this.
Something is said in the argument about the power of the sheriff to call out the posse comitatus. No statute declares the liability of the county to persons called by the sheriff to form the posse. But the posse comitatus includes only the men of the county. It does not include the horses. The sheriff has no ex-officio power to call out the horses.
By the Court.-The judgment of the circuit court is reversed, and the cause remanded for a new trial.
Clune, Respondent, vs. Wright and another, Appellants.
June 12 – June 24, 1897.
Appeal from justice's court: Sufficiency of notice.
A notice of appeal from a judgment of a justice of the peace which
does not specify the amount of damages or costs recorered, or the aggregate amount thereof, or give the date of the judgment other than the year in which it was rendered, is insufficient under sec. 3754, R. S., to confer jurisdiction on the circuit court.
APPEAL from a judgment of the circuit court for Marinette county: S. D. HASTINGS, Jr., Circuit Judge. Reversed.
Clune vs. Wright and another.
Plaintiff appealed to the circuit court for Marinette county from a judgment rendered against him in justice's court October 21, 1895. The judgment was for $36 damages and $52.24 costs. On the 30th day of October, after the rendition of the judgment, plaintiff paid the costs required to perfect an appeal therefrom, and delivered to the justice a proper affidavit, together with a notice, which was in the following language and form:
“State of Wisconsin, ?
In Justice Court,
“Justice of the Peace. “ Daniel Clune, Plaintiff, VS.
“ Justice of the Peace. “TAKE NOTICE, That the above-named plaintiff hereby appeals to the circuit court, of the county of Marinette, from the judgment rendered in this action, before William H. Humpbreville, Justice of the Peace, on the A. D. 1895, in favor of the above-named defendants, Jason K. Wright and Anson F. Wright, and against the above named plaintiff, for — dollars, damages, and — dollars, costs. “ Dated
“B. F. Simpson, Plaintiff's Attorney." Objection was taken in the circuit court to the sufficiency of such notice by a motion to dismiss the appeal, which motion was overruled. Such proceedings were thereafter had that judgment was rendered in plaintiff's favor, and defendants appealed.