Stone v. Town of Langlade

Crowni-iart, J. We regret that we are unable to decide this case on the merits, but as we view the law the court had no jurisdiction to proceed to final judgment on the merits because of failure of the plaintiff to file with the town clerk a “statement or bill” of his claim against the town as provided in secs. 60.33 and 60.36, Stats. Sec. 60.36 provides: “No action upon any claim or cause of action for which a money judgment only is' demandable, except upon town orders, bonds, coupons or written promises to pay any sum of money, shall be maintained against any town unless a statement or bill of such claim shall have been filed with the town clerk to be laid before the town board of audit, nor [106] until five days after the adjournment of the next regular meeting of the board of audit thereafter.” And sec. 60.33 provides: “60.33 Duties of board of audit. It shall be the duty of such board of audit: . . . “(2) To examine and audit every account, or demand for which a money judgment only is demandable, presented against the town, and to indorse thereon the amount allowed and disallowed, stating the items; and no allowance shall be made on any account which does not specifically state each item, with the date, amount and nature thereof separately. Such statement shall be verified by the affidavit of the claimant, his agent or attorney and filed with the town clerk; and no such claim against any town shall be acted upon of considered by any town board unless such statement shall have been so made and filed.” The “statement or bill” referred to in sec. 60.36 must mean the same as “account or demand” or “statement” mentioned in sec. 60.33; hence it must be verified. Prior to 1917, sub. (2), sec. 60.33, Stats., then sec. 821 of the Statutes, did not require a statement of claim in a tort action to be filed with the town clerk to be laid before the board of audit. It was sufficient to give notice of the claim pursuant to sec. 1339. Spearbracker v. Larrabee, 64 Wis. 573, 25 N. W. 555. By ch. 553, Laws 1917, the statute was amended to insert after the word “account” in the first line of'sec. 821, now sub. (2), sec. 60.33, Stats., the phrase “or demand for which a money judgment only is demandable,” and the section so amended clearly covers a tort action for which only a money judgment is demanded. It is urged that this language of the amendment is not included in the expression, “Such statement shall be verified,” following later in the same section. A careful consideration of the statute leads us to the conclusion that the intent of the legislature of 1917 was to provide that tort claims for damages should be considered by the' town boards the shine as accounts, and that as a condition precedent to the com107 mencem;ent of an action on such a claim a verified statement must be filed with the town clerk. This holding is in line with Meyer v. Outagamie Co. 134 Wis. 86, 114 N. W. 94, under a somewhat similar statute. The plaintiff failed to allege or prove compliance with the statutes. The defendant raised objection to the complaint by demurrer ore terms, then by motion for nonsuit, motion for a directed verdict, and for judgment, but the court denied all motions and entered judgment for plaintiff on a special verdict of the jury. Holding, as we do, that compliance with the statute as to filing a verified claim or statement with the town clerk is a condition precedent to recovery, it follows that the fact should have been alleged and proved, failing which the objections of the defendant were timely and should have been sustained. Hogan v. Beloit, 175 Wis. 199, 184 N. W. 687, and cases cited; Eron v. Stevens Point, 85 Wis. 379, 55 N. W. 410. By the Court. — The judgment of the municipal court is reversed, with directions to dismiss the complaint.