Woodruff v. Town of Depere

Cassoday, J. The reassessment was not completed by the clerk until more than four and a half months after it 'was ordered. The plaintiffs desired to contest the validity of the same, but failed to file their objections thereto within twenty days after its completion, as required. Sec. 12105, R. S., as amended by sec. 5, ch. 255, Laws of 1819, and ch. 128, Laws of 1881. It is claimed that allowing such objections to be filed and served thereafter was error. The statute provides, in effect that the court, or a judge, may, on motion and good cause shown, in his discretion, and upon such terms as may be just, allow any proceeding in an action after its commencement, not excepted therein, to be taken after the time limited by the statute has expired. Sec. 2831, R. S. The filing and serving of such objections was certainly a proceeding in the action after its commencement. The objection that the allowance was made upon an ex parte application, was overruled in Cartright v. Town of Belmont, 58 Wis., 370. The ruling in that case disposes of that objection in this case. There seems to have been good cause shown 'for the allowance. The clerk of the defendant town not only failed to keep his promise and notify the attorneys for the plaintiffs, but actually misled them by completing the assessment more than two months prior to the time he had stated in his letter, and fifty-one days prior to the time he therein fixed for beginning the work upon it. If it was within the discretionary power of the commissioner to make the allowance at~all, then the allowance here made was highly proper under the circumstances disclosed. Nor do we think there was any abuse of discretion by failing to impose costs as a condition of its allowance. The defendant town, through its clerk, charged with the duty of [132] completing the reassessment roll, having been guilty, not only of a breach of promise, but of misleading the attorneys for the plaintiffs, is in no position to claim an abuse of discretion in failing to impose costs as a condition of allowing the motion which such bad faith had necessitated. Had the court commissioner power to make the order granting the allowance? Sec. 2831, supra, expressly authorizes “a judge” to make the order. It does not say “by the court,” nor “ by the presiding judge,” nor “ by the circuit judge, using such words of designation,” and hence neither a county judge nor court commissioner is prohibited from making the order by the first part of sec. 2815, R. S., as amended by subd. 24, sec. 2, eh. 194, Laws of 1879. Except as therein prohibited or otherwise directed in particular instances, a county judge or court commissioner may exercise within his county the powers, and is subject to the restrictions thereon, of a circuit judge at chambers, according to existing practice and the statutes, in all actions or proceedings in courts of record. Ibid. Since the statute does not require that such order must be made “ by the court,” or “by the-presiding judge,” or “by the circuit judge,” but simply authorizes “ a judge ” to make the same, it follows that “ a county judge or court commissioner ” may also exercise within his county the same powers. That is to say, the words “ a judge,” as used in sec. 2831, must be construed to include “ county judge or court commissioner.” Clark v. Bergenthal, 52 Wis., 108. Of course all such orders may be reviewed -by the court. Sec. 2815, R. S. Here the order was so reviewed, and, in effect, sustained. It is claimed that the order appealed from is irregular because, in effect, it ordered an issue to be made up involving the objections filed, by filing and serving a supplemental complaint, and allowing the defendants twenty days to answer the same. The statute prescribes no particular mode of making up such issue, but leaves it very much to the [133] discretion of the court. It simply provides that, upon filing and serving the objections, “ the court may direct an issue to be made up involving the objections” so filed and served. Sec. 5, ch. 235, Laws of 1879, and ch. 128, Laws of 1881. There can be no question but that the order here required such issue to be made up, and that it should involve the objections filed. It may be inferred from these statutes that because such issue, so made up, is to “ be tried summarily by the court,” it was more formal than actually required, but if that were so, still it would not be available as error. J3y the Court.— The order of tbe circuit court is affirmed.