Prichard v. Bixby

Lvorr, J. On the authority of State ex rel. Luderman, v. Findley, 67 Wis. 86, it must be held that the decision and order of the four commissioners, in the absence of the fifth who did not appear, is void. It is quite immaterial that the supervisors and the defendant Bixby consented that the four might thus act. In the absence of the fifth commissioner there was no jurisdiction of the subject matter, and consent could not confer jurisdiction. This is elementary. Hence the case stands as though the commissioners had made no order, and the decision of .the supervisors has beep neither affirmed nor reversed. The condition of the bond is that the principal therein, the defendant Bixby, shall pay all costs arising from such appeal in case the determination of the supervisors shall not be reversed. But the statute is that “if the determination or judgment of the supervisors shall be affirmed by the decision of the commissioners, the [425] party appealing from such determination or judgment shall pay all costs and expenses of the proceedings had in the matter.” Sec. 1362, R. S. It will thus be seen that while the bond, in form, renders the obligors therein liable for such costs and expenses unless the determination of the supervisors is reversed, the • statute seems to make such liability dependent upon an affirmance of such determination. There are very plausible, perhaps good, reasons for holding that, notwithstanding the form of the bond, the statute relieves the obligors from liability unless there is an actual affirmance. "We do not find it necessary, however, to determine the question here suggested, but, for the purposes of this case, we choose rather to assume that the failure to obtain a valid determination by the commissioners renders the obligors liable upon their bond according to its terms. This brings us to the question, Does the bond cover and include the expenses of the town in procuring witnesses to testify on the hearing before the commissioners ? The statute (sec. 1363) requires the commissioners to view and examine the lands described in the notice of appeal, and to hear any reasons which may be offered for and against the determination of the supervisors. It also authorizes, but does not require, them- to “examine witnesses upon any point relating to the subject matter submitted to them.” The commissioners may examine witnesses, ór not, in their discretion.' Probably in most cases the view of the land and the arguments in behalf of the town and interested parties would give them all the information necessary to an intelligent determination of the appeal, without resorting to the testimony of witnesses. Hence it could not be known in the present case whether the attendance of witnesses would be required until the commissioners had met and indicated their views upon that subject. The attendance of the witnesses in question on behalf of the town was procured on the day appointed in the summons [426] for the commissioners to meet, and, as a matter of course, before the supervisors could know that their testimony would be called for or received. We think, therefore, that the expenses incurred by the town in that behalf were prematurely incurred. The supervisors should have waited until they ascertained whether the persons named as commissioners would' all appear and qualify as such, and whether, after being duly qualified, they would examine any witnesses. By producing their witnesses when they did, they took the risk that the hearing of the appeal might fail for any cause, or that no witnesses would be examined. Hence, if we assume that the bond iu suit covers the expenses of witnesses necessarily obtained by the town, it must still be held, for the reasons above suggested, that it does not cover the expenses therefor incurred in the present case. In view of the fact that the statute provides expressly for the fees of the commissioners, justice, and constable, and is silent in regard to the expenses of procuring witnesses, the argument is quite persuasive that such expenses were not intended to be covered by the bond. But we do not determine the point. It is claimed on behalf of the plaintiffs that the judgment herein is a personal judgment against the three supervisors named as plaintiffs, upon which the defendants are entitled to an execution de bonis prqpriis, and hence that the judgment is irregular. We do not so understand this judgment. We are of the opinion that the action is substantially by the town of Rutland, or, what is the same thing, by the supervisors of that town in their official capacity, upon a demand alleged to be due the town, and that the action has no feature of a personal action by the supervisors in their individual capacities. The insertion of their personal names as plaintiffs may be rejected as sjirplusage. The irregularity is harmless. Had other persons become supervisors of [427] that town pending the action, the suit would not have abated. The judgment is, in form, “ against George W. Prichard, F. R. Usher, and Mans Hanson, supervisors of the town of Rutland, Dane Co., Wisconsin.” But the names of the supervisors inserted in the judgment is equally sur-plusage, and does not render the judgment a personal one against them. It merely follows the summons and complaint, and has no more effect in one than in the other. The foregoing views'are sustained by the case of Cairns v. O’Bleness, 40 Wis. 469, and cases there cited. It may be an irregularity that the action was brought in the name of the supervisors, instead of the town of Rutland (see sec. 773, R. S.); but, if so, it was committed by the plaintiffs, and they cannot be heard to complain of it. We are of the opinion that the judgment, although in form against the supervisors, is substantially against the town, and that it can be enforced only in the manner prescribed by sec. 781, R. S. Our conclusion is that the case was correctly decided by the circuit court, and hence that the judgment should not be disturbed. By the Court. — -Judgment affirmed.