Marlatt v. Chipman

MaRshalu, J. As indicated in the statement, the sole question passed upon below is whether the bond given on appeal was sufficient to afford the county judge jurisdiction to appoint the commissioners. The purpose of the bond is evident on its face and from all the characterizing circumstances. The proceedings were referable to secs. 1216 and 1277, Stats. That means that the intention was to secure the contingent obligation to pay costs in case of the appeal not being successful, yet the word “not,” of the statute, was omitted making the bond nonsensical. The county judge took the bond according to its intent and so did all the adverse parties, else they would have objected at the start. There we see the clearest kind of a case of practical construction, if any construction, strictly so called, was necessary. Under such circumstances we have no hesitancy in holding that the paper is to be read according to the statutory intent, that it should be conditioned as in the statute. There is no reason which we can perceive why the logic of the rule that a word which is in place by necessary inference should be read as there, and that any interfering word should be rejected as surplusage, does not apply very strongly to a [197] statutory paper where the evidence is conclusive that failure to insert the proper word was a mere inadvertence. To hold otherwise and establish or even continue a rule of technical accuracy which'makes for injustice, thereby using means designed for protection of public and private interests to work the very opposite in many cases, is contrary to reason and common sense and opposed to the liberalizing trend of present-day judicial thought. We need not look for case law for guidance in this instance. It is sufficient that it falls within the scope of a well known principle, even if that principle needs expanding to reach the new situation, which is not thought to be the 'fact. That is supported by cases cited in appellants’ brief. Reeg v. Adams, 113 Wis. 175, 87 N. W. 1067; Butler v. Bohn, 31 Minn. 325, 17 N. W. 862; United States F. & G. Co. v. Poetker, 180 Ind. 255, 102 N. E. 372. The doctrine of Neacy v. Milwaukee Co. 144 Wis. 210, 128 N. W. 1063, with authorities there referred to, amply meets the situation here. Courts elsewhere have held, very strongly and consistently, that a word inadvertently added to a statutory bond which renders it nonsensical should be rejected, that such an instrument does not need reformation to conform to the conditions of the statute which the parties intended to incorporate in it. Stockton v. Turner, 30 Ky. 192. It follows from the foregoing that the decision upon which the decision complained of is grounded is wrong. The trial court probably was guided by Telford v. Ashland, 100 Wis. 238, 75 N. W. 1006; Oshkosh W. W. Co. v. Oshkosh, 106 Wis. 83, 85, 86, 81 N. W. 1040; Drinkwine v. Eau Claire, 83 Wis. 428, 53 N. W. 673; State ex rel. Vos v. Hoelz, 69 Wis. 84, 33 N. W. 597, and similar cases. Without very careful reading of those cases to discover the real point decided they niight afford some support for the result reached below in this case; but, really, they are quite plainly distinguishable from the case before us. No such technical accuracy as is insisted [198] ■upon bere was sanctioned in Oshkosh W. W. Co. v. Oshkosh, supra. All tbe court there held was that substantial compliance with statutory requirements is necessary. In State ex rel. Vos v. Hoelz, supra, the bond was given under a wrong statute and did not fit the particular situation at all. It was not “a purely clerical error” as counsel here suggest, which the court dealt with. The court had no idea of holding that such an error is fatal and did not use any language to that effect. Particular attention was called to the fact that the wrong statute was used so that the whole obligation was wrong. So it was held that the bond did not in terms or substance comply with the statute. We might review each of the other cases cited to our attention with results similar t'o-the, foregoing, but it does not seem advisable to go further. The court below having failed to pass upon any of the other alleged jurisdictional defects claimed by respondent, and counsel on that side having rested the case wholly on the point already discussed, it is not necessary for the court here to go further; but it seems best to do so and not leave any room for further litigation within the scope of the petition for the writ of certiorari. All the claims of error referred to have been examined and found to be inconsequential or not supported by any jurisdictional requirement. Eor illustration: The call in the notice of meeting of the supervisors for the home of Ben Johnson, was amply satisfied by the dooryard of his house. So the call for 10 o’clock was satisfied by the meeting within the hour. The statute does not require proof of the service of notice under sec. 1268 to be filed in the office of the town clerk before the meeting of the supervisors to decide upon the petition to lay out the highway. Notice of any adjourned meetings of supervisors in such a case other than that given publicity at the time of the first meeting is not necessary, nor is notice to property owners of application for the appointment of com [199] missioners required by statute. The same is true witb reference to the other complaints as to want of notice. The record shows very clearly that the appeal to the county judge was made in time. The time allowed by statute is thirty days. The appeal was in fact made in twenty-four days. We might continue to the end with the numerous claims of error but it seems sufficient to say that each has been carefully examined and a result reached adverse to respondent, either upon the ground that the claim is not supported by the record, or not by statute, or that it relates to an inconsequential matter. By the Oowrt. — The judgment is reversed, and the cause remanded with directions to render judgment of affirmance.