Eron v. Town of Stevens Point

Cassoday, J. Error is assigned because at the close of the testimony the court refused to grant the defendant’s motion to direct a verdict in its favor on the ground that the evidence was insufficient to establish a cause of action against the town. Error is also assigned because, upon the rendition of the verdict and before judgment, the court refused to grant the defendant’s motion to set aside the verdict and grant a new trial. for the reason, among others, that there was no proof in the case, and that no 'evidence had been offered, “ tending to show that any bill or statement of the claim or demand of the plaintiff wras ever filed with the town clerk of the defendant town, to be laid before the town board of audit, as required by sec. 824, R. S.” It is conceded that no such proof was made in the case, but it is contended that because the complaint alleges the filing of such statement, and the same is not specifically denied, the defendant must, under the statute, “ be deemed to have waived the same.” Sec. 2654, R. S. In' other words, counsel contend that the failure to file such statement was at most matter in abatement, and hence was not put in issue by the general denial contained in the answer, and that the same could only be put in issue by special denial or plea. That such is the rule as to matters merely in abatément seems to be firmly sanctioned by the decisions of this court cited by counsel for the .plaintiff. But under another line of decisions of this court we are forced to hold that the filing of such statement is not a matter merely in abatement, but a matter in bar. The section of the statute last cited, and relied upon by counsel, in effect declares that “the defendant shall be deemed to have waived” any objection.to certain matters in abatement, unless “taken [382] either by demurrer or answer,” and expressly excepts therefrom “ the objection that the complaint does not state facts sufficient to constitute a cause of action.” This court has frequently held that a complaint in a case like this does not state facts sufficient to constitute a cause of action if it omits to allege the filing of such statement. Benware v. Pine Valley, 53 Wis. 527; Chicago & N. W. R. Co. v. Langlade, 55 Wis. 117; Wentworth v. Summit, 60 Wis. 281 ; Watson v. Appleton, 62 Wis. 267; Koch v. Ashland, 83 Wis. 361. Some of these cases went to the extent of holding that the omission to allege such filing in the complaint rendered the same bad on demurrer ore tenus. This could only be on the theory that such filing is essential to the cause of action, and a condition precedent to the right to maintain the same. Welsh v. Argyle, ante, p. 307. We must hold that the general denial put in issue the allegation of the complaint of the filing of such statement. Being thus put in issue, the burden of proving the same was on the plaintiff. Having failed to make such proof, the verdict should have been set aside. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.