Adams v. City of Modesto

CHIPMAN, C. Action to abate a nuisance and for damages. Plaintiffs had judgment, from which, and from the order denying its motion for a new trial, defendant appeals.

Defendant demurred to the complaint for insufficiency of facts, and in the Specifications in support of the motion for new trial it was specified “that there is no evidence that any claim was ever presented to the defendant city for the damage claimed by plaintiffs.” The city of Modesto is a municipal corporation of the sixth class, and comes within the provisions of the act of March 13, 1883 (Stats. 1883, p. 93), subchapter 7, at page 266 et seq. Section 864 provides as follows: “All demands against such city or town shall be presented to and audited by the board of trustees, in accordance with such regulations as they may by ordinance prescribe; and upon the allowance of any such demand the president of the board shall draw a warrant,” etc. Section 878 provides, among other things, that “the clerk shall also keep a book, marked ‘Demands and Warrants,’ in which he shall note every demand against the city or town, and file the same. He shall state therein, under the note of the demands, the final disposition made of the same.....This book shall contain an index, in which reference shall be made to each demand.....He and his deputy shall take all necessary affidavits to demands against the city or town, and certify [488]the same without charge.” The act does not provide that no action shall be brought unless the claim is presented as required by section 864, nor is there a limitation as to the right to sue. Section 850 expressly provides that the corporation “may sue and be sued in all courts,” etc. Respondent contends: (1) That it does not appear in the pleadings that the claim was not presented. (2) Failure to present a claim must be taken advantage of by demurrer or answer, or it will be regarded as waived; citing 15 Am. & Ency. of Law, p. 1194, note; Sheel v. City of Appleton, 49 Wis. 125, 5 N. W. 27. (3) Statutes requiring the presentation of claims are not usually held to include torts. (4) The act of 1883 requires the presentation of demands in accordance with such regulations as the trustees may by ordinance prescribe, and there is no evidence that the trustees have made any regulations on the subject, or that plaintiffs’ claim does not comply with the prescribed form.

Bancroft v. City of San Diego, 120 Cal. 432, 52 Pac. 712, was similar to the present case. The action was for damages caused by grading a street so as to leave plaintiff’s lot in a° hollow several feet below the street. The claim for damages was not presented to the common council before suit. The city charter did not provide that no action should be'brought unless the claim should be first presented. There was no limitation as to the right to sue, and it was claimed that the demand was for damages from a tort. The charter there read: “All claims for damages against the city must be presented to the common council and filed with the clerk within six months after the occurrence from which the damages arose.” It was held that a failure to present a claim is fatal to recovery in an action upon it. The term “demands,” as used in the act of 1883, is certainly broad enough to include “all claims for damages,” which latter are the terms used in the San Diego charter. We are unable to distinguish the present case from the Bancroft case. The term “demands,” therefore, includes damages for torts. Has defendant waived its right to raise the question! The point arises on general demurrer: Thompson v. City of Milwaukee, 69 Wis. 492, 34 N. W. 402; Flieth v. City of Wausau, 93 Wis. 446, 67 N. W. 731. Defendant demurred for insufficiency of facts, and the objection was, therefore, not waived. Whether a failure to demur or to raise the question by answer would be deemed a waiver