Koch v. City of Ashland

Winslow, J. The questions presented are (1) whether an independent action can be maintained against the city of Ashland for damages resulting from an injury received on a defective highway, or whether the claim must be filed with the city clerk and come to the circuit court by appeal from the action of the council; (2) whether the objection is properly raised in this case. 1. The charter of the city of Ashland provides (Laws of 1889, ch. 27, subch. 8, sec. 13): “ No suit of any kind or any claim of any character shall be brought against said city, but the claimant shall file his claim with the city clerk for the action of the council thereon, and, if he feels aggrieved by their determination, he may appeal to the circuit court in the manner hereinbefore provided.” Also in sec. 6, subch. 5, of the same act: “ The comptroller shall examine all claims presented against the city, whether founded on contract or otherwise, and determine as to each claim, . . . and report,the same to the council.” These provisions are so broad and comprehensive in their character that we are compelled to hold that they include tort claims such as the one under consideration. They are substantially the same as the provisions of the charter of Appleton, which have been held to include torts. Sheel v. Appleton, 49 Wis. 125; Watson v. Appleton, 62 Wis. 267. 2. Has the objection been.properly taken? We think it [364] bas been properly taken by the general demurrer for insufficiency of facts. The complaint in such a case as this must allege the presentation of the claim, and the appeal from the decision of the council. It was said by this court in Watson v. Appleton, 62 Wis. 267, on page 271: “When the nonaction of the common council had worked a disallowance of the plaintiff’s claim, she should have taken her appeal to the circuit court within the time prescribed by the charter; and then the complaint filed therein should have alleged the facts made requisite by the charter to give that court jurisdiction, or, rather, to show that the plaintiff had the right, or had not waived the right, to maintain her action in that forum. This would have been in* conformity with the rules of pleading in ordinary actions for injury by reason of defective highways, requiring the complaint to show that the conditions named in secs. 824, 1339, E. S., had been complied with.” It follows from these views that the demurrer to the complaint was well founded. By the Court.— Order reversed, and action remanded for further proceedings according to law.