Bacon v. City of Antigo

Winslow, J. The plaintiff brought action against the city for personal injuries suffered on account of a defective sidewalk upon a street in the defendant city, and alleged service •of a notice of the injury by filing the same with the city clerk, for presentation to the city council, within sixty days after the injury. Upon the trial, a general demurrer ore tenus to the complaint was sustained, on the ground that the complaint did not allege the presentation of the claim to the common council. [11] The charter of the city provides (Laws of 1889, ch. 197, sec. 139) that no action in tort shall lie or be maintained against the city, “ unless a statement in writing signed by the person injured or claiming to be injured, of the wrong and circumstances thereof, and the amount of damages claimed shall be presented to the common council within sixty days after the occurring or happening of. the tort alleged.” The trial court held that filing the- claim with the city clerk for presentation to the council did not satisfy this provision. This holding was, we think, erroneous. The city clerk is the custodian of all the papers and records of the city, and required to attend all meetings of the council, and keep a correct record of its proceedings. Sec. 58, ch. 197, Laws of 1889. It is his manifest duty to place before the council all claims of the nature of the one before us which are filed with him for presentation to the council. There is no other orderly way in which a claimant can make sure of presentation of his claim to the council. If he must wait until a meeting of the council is held and present it in open meeting, he might be denied an opportunity to present it at all, by mere failure of the council to meet; and he might also be denied the full sixty days’ time which the statute gives him in which to present it. This view is in accord with the construction given to similar provisions of statute in the cases of Parish v. Eden, 62 Wis. 272, and Mason v. Ashland, 98 Wis. 540, although at variance with the holding in Hiner v. Fond du Lae, 71 Wis. 74, which latter case must be considered as overruled upon this question. By the GouH.— Judgment reversed, and action remanded for a new trial.