Town of Stinnett v. Noggle

Barnes, J. By subd. 6, sec. 836, Stats. (1898), it is provided that “It shall be the duty of the town treasurer . . . to deliver, on demand, to his successor in office, . . . all moneys in his hands as such treasurer.” By sec. 819, Stats. (1898), as amended by ch. 55, Laws of 1901, town boards “are . . . authorized to make demand for payment to the town treasurer for any damages, penalties, forfeitures or moneys due hereunder to the town; for breaches of official bonds to the damage of the town, . . . and in case of failure to comply with said demand they may bring suit to recover said . . . moneys due the town hereunder without further notice or demand whatsoever.” It is admitted that if the complaint failed to state a cause of action the demurrer to the counterclaim was properly sustained as a demurrer to the complaint. It has been held that as to actions which town boards are authorized to bring under sec. 819, Stats., no vote of the electors is necessary to-authorize the commencement thereof under subd. 2, sec. 716,. Stats. Fox Lake v. Fox Lake, 62 Wis. 486, 22 N. W. 584. And it is not claimed by the respondent that any vote of the electors was necessary. Bespondent does claim, however,, that the complaint is defective in that it fails to allege that a demand was made upon the defendant before suit was brought, and further, because it fails to allege that defendant’s successor was duly qualified and therefore entitled to-recover the money. The action is for conversion, and there is nothing alleged to show that defendant was wrongfully in possession of the-town funds until his successor was appointed and had qualified. Under the statutes referred to there was no default on. [607] defendant’s part until Ms successor demanded tbat tbe moneys be paid over, and no right on tbe part of tbe town board to institute an action until a demand bad been made. Tbe complaint does not allege in specific terms tbat a demand was made, but we think it does so in substance and effect. Pleadings must be liberally construed. Tbe complaint alleges tbat defendant unlawfully converted tbe money. Tbe demurrer admits tbis allegation to be true, but it can only be true because a demand was in-fact made, as tbat was one of tbe essential things to make a conversion. Again, the complaint alleges that the defendant refused to pay over tbe money sued for. Tbis plainly implies tbat he had been requested to do so, because ordinarily a refusal follows a request or demand. So, while we cannot commend tbe pleading as a model one, we think it was broad enough to advise defendant tbat a demand bad been made upon him and broad enough to permit evidence to be offered to tbat effect. There is much less merit in tbe claim tbat tbe complaint does not allege tbat a successor to tbe defendant as treasurer bad been appointed and bad qualified. The allegation is that defendant continued to act as treasurer until December 12, 1908, “when his successor was appointed and qualified, and one Robert Trulson was tbe said person so appointed.” It would be hypercritical to say tbat tbis averment did not advise the defendant that Trulson bad been appointed to tbe office and had qualified himself to discharge bis duties. Tbe sufficiency of tbe defendant’s counterclaim has not been passed upon by tbe trial court, but we deem it proper to decide it inasmuch as tbe question has been argued. Both sides expressed great confidence in their ability to win on tbe facts as soon as tbe law of the case was settled, and are apparently anxious to go to trial on tbe merits. In any event, it would not be good administration of justice to invite another appeal to determine tbe sufficiency of tbe counterclaim. Counsel for appellant contend tbat tbe defendant’s alleged [608] cause of action, did not exist until after tbe claim had been presented to the town board for audit and allowance and the same was laid before the electors at the annual town meeting and was disallowed, as provided by sec. 824, Stats. (1898). The claim was not disallowed by the electors until April 4, 1911. Counsel further claim that the alleged counterclaim falls within the provisions of subd. 2 of sec. 2656, Stats. (1898), and that under that subdivision only a cause of action which existed at the time of the commencement of the action, to wit, February 23, 1911, could be pleaded as a counterclaim. It is obvious that the counterclaim falls under subd. 1 of sec. 2656 instead of subd. 2. The cause of action arises out of the transaction set forth in the complaint as the foundation of plaintiffs claim and is connected with the subject of the action. As to subd. 2, the statute expressly provides that the cause of action pleaded as a counterclaim must exist at the commencement of the action. There is no such statutory requirement as to counterclaims arising under subd. 1. This court, however, held in Orton v. Noonan, 29 Wis. 541, that only a cause of action which existed when suit was begun could be pleaded as a counterclaim under subd. 1, because it did not clearly appear that the legislature intended to change the common-law rule in this regard. Perhaps the court in deciding this case paid too little heed to the spirit of the Code and .showed too much attachment to common-law rules of procedure, and that the rule in Orton v. Noonan might well be abrogated. It would seem that, where the legislature has said that as to one class of causes of action they must exist when suit is commenced to be pleadable as counterclaims, and makes no such requirement as to another class, there was a reasonably plain intention to differentiate between the two. However this may be, the decision in Orton v. Noonan should not be extended to cases that do not fall within its limitations. There, the counterclaim interposed [609] was for rents wbicb fell due after tbe action was begun and no part of tbe indebtedness bad accrued at tbat time. Here, tbe alleged indebtedness existed at tbe time tbe action was begun, and tbe right of action was complete, except tbat tbe statute required, as a condition precedent to tbe commencement of a suit to enforce tbe existing right, tbat tbe claim must be laid before tbe town board for audit and allowance. Inasmuch as tbe indebtedness did exist when plaintiff began its action, and tbe condition precedent bad been fulfilled within tbe time tbat defendant was required to plead, we bold tbat tbe objection raised is not tenable. While it is not tbe function of tbe courts' to sweep away statutory barriers, it is their function to so construe statutes, when reasonably possible, as to require parties to try their cases on tbe merits and to restrict them to a minimum amount of tactical maneuvering wbicb usually results in unnecessary delay and expense. Tbe issues arising on tbe complaint in tbe present case necessitate an accounting to determine bow much money belonging to tbe plaintiff came into tbe bands of tbe defendant and bow much money tbe defendant disbursed in paying tbe lawful obligations of tbe town: When tbe, balance is struck it will tell whether defendant owes the town or vice versa. If defendant has mistakenly paid out some of bis own money to take care of orders drawn upon him as treasurer, common honesty and fair dealing would require tbat be be reimbursed, and it would be an expensive and nonsensical ceremony to require him to resort to another action to get what is found to be bis due. It follows tbat tbe order appealed from must be reversed, and tbe cause remanded with directions to overrule tbe demurrer interposed to tbe counterclaim. Neither party is allowed costs, except tbat tbe appellant is required to pay tbe clerk’s fees in this court. By the Court. — It is so ordered. [610] The following opinion was filed March 16, 1912: