Volume 183 — Wisconsin Reports

H. Reid, Circuit Judge. The complaint asserted a number of causes of action, although designated in the complaint and treated on the trial and the argument here as but three. The general statements common to all are these: Plaintiffs are husband and wife and residents of the village of Eagle River, Wisconsin; the defendants (Moses Frankel being the father of defendant David) were copart-ners operating a general store in the same village.

<p> Schools: Transportation of children: Construction of statute: Compensation: Conditions precedent: Attendance of children: How long required: Furnishing conveyance only: Sitfficiency of conveyance. </p> <p>1. Sec. 40.16, Stats., providing for compensation to a parent or guardian who transports children living more than two miles from school, is a beneficent statute, in the interest of education, and must be liberally construed to accomplish the purpose intended, p. 257.</p> <p>2. A provision for such compensation if the school is attended by the children for not less than five months while being transported does not require 100 per cent, consecutive attendance, but merely requires that they attend school for more than five school months (100 days) during the time of transportation. , p. 257.</p> <p>3. Said sec. 40.16 does not require the physical presence in the conveyance of the parent or guardian, which may be driven by one of the children if of sufficient age to safely transport the others, p. 258.</p> <p>4. Noncompliance with sec. 40.73, Stats., which requires parents to see that their children attend school six months during the year, does not defeat a parent’s right to compensation, under sec. 40.16, for transporting his children to school if they attend five months, p. 258.</p> <p>5. Transportation of five children to school in a single-seat open buggy in a sparsely settled community is not an insufficiént compliance, as a matter of law, with sub. (1) (b), sec. 40.16, Stats., requiring as a condition precedent to recovery of compensation therefor that the transportation furnished by the parent or guardian be safe, comfortable, and convenient, p. 259.</p>

<p>Appeal from a judgment of the circuit court for Juneau county: E. W. Crosby, Circuit Judge.</p>

W. Crosby, Circuit Judge. The appeal is from a judgment adjudging the plaintiff to be the equitable owner of the southeast quarter of the southwest quarter of section 30, township- 28 north, of range 1 west, Clark cpunty, Wisconsin, and for costs and other relief. This is an action in equity to compel the defendant to convey to the plaintiff forty acres out of a tract of 120 acres of land, and to assume the mortgage and other obligations on such tract of land.

Fowler, Circuit Judge. Some fourteen years prior to July 26, 1921, plaintiffs erected and thereafter maintained at the outer edge of the sidewalk in front of their jewelry store ¿n the west side of Main street in Oshkosh, Wisconsin, a clock on a pillar six to eight feet high. The dial was five feet in diameter and projected about one foot into the space above the street.

E. Richter, Judge. Edward H. Lyons died January 16, 1920. He left'a will by which he bequeathed to his wife, Mary F. Lyons, his automobile, all household furniture, pictures, stores, household goods and effects, and life insurance amounting.to $11,000. To two sisters-in-law, each $2,000.

Appeals from a judgment of the'county court of Fond du Lac county: A. E. Rici-iter, Judge. Charles Brill died intestate on March 29, 1922. A claim was filed against his estate based upon services rendered between 1904 and 1922, the claimant being a cousin of the deceased. Deceased had resided on a farm near Rosendale, Wisconsin. The claimant lived with her husband in Simpson, Minnesota.

<p>Appeal from an order of the circuit court for Columbia county: Chester A. Fowler, Circuit Judge.</p> <p>The appeal is from ,an order sustaining a demurrer to the plaintiff’s complaint.</p> <p>The complaint alleges that the plaintiff is a taxpayer and resident of the village of Kilbourn City, and that he brings this action in his own behalf and in behalf of all other persons similarly situated; that during the .times mentioned in the complaint the defendant Olson was president of the village, the defendant A.. W. Luettger.odt the village clerk, and the defendants Helland, Field, Amts, Wirts, Pribbenow, and Mechler members.of the village board; that on the 21st day of March, 1923, the said board and the members thereof fraudulently conspired to procure for the defendant Stanton, from said village, a transfer of certain property lying along the Wisconsin river at a grossly inadequate price; that the defendant Helland participated in and. conducted all negotiations for said Stanton, and was directly interested in the sale of such property to him; that the defendant Olson was indirectly interested in securing such conveyance, assisted in securing the execution of the deed, and that by reason of the improvident and fraudulent action of-the village officers, and the interest therein.upon the part of the. said Helland and said Olson, said sale, which was actually consummated on said date, was and is wholly, void. The action is brought to rescind such conveyance and to direct the village to repay to said Stanton the amount of the purchase price.</p> <p>The defendant Olson interposed a demurrer upon two grounds: first, that the complaint does not state facts sufficient to constitute a cause of action; and second, that the plaintiff has no legal capacity to sue. The court overruled the demurrer upon the first ground stated, but sustained the demurrer on the second ground. The defendant Olson, pursuant to sec. 3049a, Stats., demands a review of the order of the court overruling the demurrer on the first ground. Both grounds of demurrer are therefore up for consideration by this court on the appeal.</p>

Fowler, Circuit Judge. Action begun in the municipal court to recover damages to plaintiff’s automobile sustained by him in a collision with defendant’s car that occurred in the evening of July 12, 1923.. The jury found that both the defendant and the plaintiff were guilty of negligence that proximately contributed to.produce the collision. Judgment went for defendant, and was affirmed by the circuit court upon appeal by the plaintiff.

Fritz, Judge. Ejectment. John McAfee, the owner of the south half of the southeast quarter of section 9, township 15 north, of range 10 east, caused a plat of a part thereof to be recorded on May 9, .1873. Exhibit 8, a copy of which is inserted herewith, is a photographic copy reduced in size and' represents the original plat as recorded, the plat itself not having been offered or received in evidence.

<p>Appeal from a judgment of the circuit court for Eau Claire county; E. C. Higbee, Judge.</p> <p>Action for demurrage on thirty-three carloads of logs from defendant’s camps to its mill, March 25 to 31, 1920.</p> <p>The answer admitted that such cars were received at Eau Claire by plaintiff for delivery at defendant’s mill yard in said city. Alleged that' during the same period an unprecedented flood existed in the Chippewa river adjacent to plaintiff’s railroad track at the place where defendant usually unloaded its logs, so that the logs could not be dumped into its pond without being carried away. That any delay on the part of the defendant in releasing said cars was caused by such flood and by the delay of the plaintiff in delivering.</p> <p>It is undisputed that defendant has its own spur track with branches in its mill yard and connected with plaintiff’s main line. That by custom and defendant’s standing order all prior carload log shipments had been spotted upon a portion of such tracks adjacent to defendant’s pond and boom and there unloaded directly into the pond for movement to the mill. That there was other space on such tracks from which unloading could be done on to the land, but requiring extra handling. That by drum and cable defendant to some extent could move cars in its yard. That during this flood, unusual in height and duration, defendant secured its boom by cables across and fastened to,,the rails at this unloading track and kept seven loaded cars thereon as anchorage until April 6th. That the defendant did not expect to pay demur-rage and did not anticipate at first that the flood would last so long and made no effort to withhold shipments from the camps.</p> <p>Upon the arrival on the several days of these cars plaintiff gave prompt, respective, written notice thereof to defendant, saying:</p> <p>“You are hereby notified that the following cars, consigned to or ordered to or by you, cannot be delivered on account of your act, neglect, or inability to receive, and tender of same is hereby made. These cars are subject to the' demurrage rules published in the tariffs lawfully on file, and charges in accordance therewith will be made for detention beyond the free time therein provided.”</p> <p>By a so-called average agreement concerning car detentions, defendant promised compliance with the published rules. Among such are rule 3, section D, note 1, and rule 5, section A — 1, the material parts of which appear in the decision:</p> <p>On trial by the court he found that at no time did defendant notify plaintiff of willingness or ability to receive and unload cars at other places than the usual one in the yards; that defendant did not refuse to receive the cars at other points or notify plaintiff that it was unable to receive or unload.</p> <p>Defendant appeals from the judgment for plaintiff.</p>

<p> Insurance: Alterations of premises affecting fire %azard: Changing walls: Permit to make repairs: Construction: Keeping automobile on premises: Failure to state fact in application. </p> <p>1. Where, in making alterations in insured premises, the insured removed a concrete floor and excavated under the foundation of the building, under which temporary supports had been placed, and had poured concrete into the places from which the earth had been removed, a finding of the jury that insured made no change or alteration in the building which increased the fire hazard will not be disturbed, p. 317.</p> <p>2. Changes in the walls of a building did not relieve the insurance company from liability under a policy prohibiting changes in fire- and division walls, where the policy did not define a fire or division wall and the walls were not of the character so designated by the industrial 'commission under authority of sub. (5), sec. 101.10, Stats, p. 318.</p> <p>3. Permits of the insurer, attached to the policy, for repairs and alterations in the insured building, which contained no express limitation as to the time for making such alterations nor any clause of forfeiture, are construed to suspend a clause in the policy forfeiting the policy if repairs extended beyond fifteen days. p. 319.</p> <p>4. Insurance contracts are to be most strongly construed against the insurer and in favor of the insured, especially where a forfeiture is involved, p. 319.</p> <p>5. The failure of the insured to mention in his application for insurance that he kept an automobile in a shed on one side of the building was insufficient to forfeit the policy where the car had been dismantled and not used for several months and contained no gasoline and the agent knew that the shed was used as a garage, p. 320.</p>

B. Quinlan, Circuit Judge. This is an action in replevin brought by the plaintiff for the recovery of the body of her deceased brother. The writ of replevin issued out of the circuit court. The body was taken by the officer and delivered to the plaintiff.

E. Smalley, Judge. ■ Plaintiff in error,-hereinafter called the defendant, being a licensee to sell non-intoxicating liquors under the provisions of sub. (29), sec. 165.01, Stats. 1923, was convicted in the lower court of a violation of the Severson law, for having liquor upon the licensed premises containing more than one half of one per cent, of alcohol.

Fowler, Circuit Judge. The defendant below, herein designated as the defendant, was convicted by a jury for having in his possession illegally 'manufactured intoxicating liquors and trafficking in the same. He was sentenced to ninety days at hard labor in the county jail. He now claims his conviction was unlawful for the reason that he was unlawfully searched, and liquor thus taken from his person was received in evidence over his ob j ection.

C. ITigbee, Judge. The plaintiff in error, the defendant below and here so designated, was convicted of violating the prohibition act on four counts, to wit: the purchase of privately manufactured liquor; possession of such liquor; maintenance of a nuisance; and second offense under the law.

Fritz, Circuit Judge: We shall state only such facts as are necessary to present the question decided. The plaintiff was struck and injured by the defendant Mueller’s automobile while the' same was being operated by one Lillian Sangstead, Mueller at the time being in the car and in the front seat thereof. Suit was begun against Mueller and .Miss Sangstead, which resulted in a judgment in favor of the plaintiff for $1,200.

<p> Venue: Right to change: Compliance with statute: When demand for change must he served. </p> <p>1. A defendant’s right to procure a change of venue on demand being purely statutory, substantial .compliance with the statute is necessary, p. 556.</p> <p>2. While sec. 2621, Stats., provides that, when a county designated in the summons or complaint is not the proper county, defendant may servé a demand as prescribed therein, the question as to which county is the proper county is to be determined from the complaint and not from the summons, p. 556.</p> <p>3. Under said sec. 2621, which further provides that where the county in which the action is begun is not the proper place of trial defendant may, “within twenty days after the service of the complaint,” serve upon the plaintiff’s attorney a demand for a change of venue, a demand made before service of the complaint is premature, as it should have been made after service of the complaint and before the expiration of twenty days therefrom, and the order refusing to change the venue was proper, p. 557.</p>

L. MaxfielP, Judge. Plaintiff in error, defendant below, was arrested and brought into the municipal court of Rock county on August 29, 1923, charged with violation of the state prohibition law. Pie waived examination, was committed for trial and to the county jail. On the same day he made a verified petition stating his desire to plead guilty.

■ The appeal is from a judgment in favor of the plaintiff directing one Trost, as receiver, to transfer, and deliver certain personal property, consisting of securities, to the plaintiff, and from a judgment against the defendants for the sum of $50,000.

PI. Reid, Circuit Judge. This is an appeal, from a judgment for $1,743.59 rendered upon the special verdict of the jury. The case was submitted to the jury on the theory that the carrier was negligent in handling the shipment after its arrival in New Orleans.

H. Reid, Circuit Judge. This is an appeal from a judgment in favor of the plaintiffs for $30,462.14. This is an action by plaintiffs for damages for breach of two contracts on the purchase of lumber by H. F. Below from the defendant. Plaintiffs are trustees of the assets of said Below, with power to sue on such contracts. The contracts are known as No. 9116, dated January 9, 1920, and No. 9121, dated January 12, 1920.

Ray Stevens, Circuit Judge. The Lange Canning Company operates a canning factory in Eau Claire and is also engaged in farming-. On May 15, 1919, it owned, among others, what is known as the “Fowler Farm,” situated about four miles from the city of Eau Claire. Upon this farm the Canning Company employed from eight to fourteen men during the summertime. The men slept in a bunk house. Their meals were prepared in another house maintained by the company on the farm.

<p> Joint tenancy: Tenancy in common: Assignment of stock certificates: Gifts: Necessity of delivery: Evidence: Sufficiency. </p> <p>1. Joint tenancies are no longer favored in the law, as changes in the law of tenures have to a considerable extent abolished the reasons for their existence, and courts of law now incline against them. p. 591.</p> <p>2. Where deceased, who owned certificates of stock, assigned them to herself and her son, there existed neither of the characteristic unities of title or of time, and under such circumstances a tenancy in common was created rather than a joint tenancy; and there was no right of survivorship as to the certificates, p. 592.</p> <p>3. As to certificates of stock which deceased delivered to her son-in-law to be kept in a strong box, she retaining one key and giving him the other, the evidence is held to show that, while deceased intended that after her death the certificates should become the property of the defendant, her son, she never delivered the stock to him and hence did not execute a gift. Dupont v. Jonet, 165 Wis. 554, distinguished, p. 594.</p>

<p>Appeal from an order of the circuit court for Sheboy-gan county: Michael Kirwan, Circuit Judge.</p> <p>This is an appeal from an order overruling a demurrer to an amended complaint. The complaint is based.on the following transaction: The defendants Edward F. Oehler and Frank Guenther, on or about the 19th day of October, 1921, sold to the plaintiff certain items of personal property and executed and delivered to the plaintiff a bill of sale thereof. The bill of sale warranted the defendants to be the lawful owners of the property. Plaintiff bought the property for the purpose of resale at public auction. The defendant bank claimed a chattel mortgage of $3,000 on the property and prevented the plaintiff’s contemplated sale thereof. Plaintiff claimed that he was damaged in the sum of $2,000 by reason of his inability to sell the property at such public sale. The defendants Oehler and Guenther claim that the chattel mortgage under which the defendant-bank asserts its right to the property is void as against the plaintiff because said chattel mortgage was not properly filed so as to constitute notice t® the jplaintiff. The bank claims the chattel mortgage to be a valid and enforceable lien against the property and threatens to prevent its sale and removal, and to take possession thereof, under said chattel mortgage.</p> <p>The complaint sets forth three separate causes of action. The first is based on the warranty of Oehler and Guenther contained in the bill of sale. The second cause of action is based on fraudulent representations made by Oehler and Guenther that they had good title to the property sold and the deceit in concealing from plaintiff the existence of the mortgage claimed by the bank. In the first cause of action it is alleged “that as a consequence the plaintiff cannot sell or dispose of said property; that he has been put to great expense in caring for the same; in making trips in relation thereto, and other expenses of a similar nature, and in case the interests of said defendant bank are enforceable under said chattel mortgage, that he will .have to make good the amount of said chattel mortgage in order to preserve his property; in all to his damage in the sum of $5,000.”</p> <p>The second cause of action contahis this allegation: “That by reason of the premises this plaintiff has been injured in the sum of $5,000 if the said chattel mortgage is enforceable, or in the sum of $2,000 if the said chattel mortgage- is unenforceable.”</p> <p>The third cause of action is against the bank to recover damages which the plaintiff sustained by reason of his failure to dispose of said property at public auction because of the claim made by the bank that it held a valid chattel mortgage on said property in the sum of $3,000. Plaintiff claims as damages on this cause of action the sum of $2,000. Just before the prayer occurs this allegation: “That by reason of the conflicting claims of the defendants herein, the plaintiff’s right to relief necessarily exists in the alternative.” The prayer demands judgment against the defendants Oehler and Guenther in the sum of $5,000 and against the bank in the sum of $2,000, “and if he be entitled to judgment against ti^e last named defendant, that said defendant be permanently restrained and enjoined from in any way interfering with plaintiff’s title or right to possession of the chattels.”</p> <p>The defendant bank demurred to the amended complaint on the ground that several causes of action have been improperly united. The demurrer was overruled, and the bank brings this appeal.</p>

During their lifetime Garret Doyle and Bridget Doyle, his wife, lived on a farm in Sheboygan county. On October 10, 1899, they had five children. Two, Mary Fischer (née Doyle) and Margaret Ogle (née Doyle), were married and living with their husbands. The others, Elisabeth, James, and Garret, were then unmarried and were living with their parents on their farm, and their, ages were then, respectively, forty-two-, thirty-seven, and twenty-five years.

Paul T. Krez, Judge. Three separate claims against the estate of James Doyle, deceased, were allowed by the county court, and from the judgment allowing the claims Garret Doyle, one of- the legatees, appeals.

<p> Highways: Relocation: Cost of necessary bridge: How determined: Certiorari: Review of proceedings of quasi-judicial bodies:Ministerial acts. </p> <p>1. In respect to officers having only quasi-judicial power to act in proceedings of a summary character and out of the course of the common law, the proceedings will be reyiewed by cer-tiorari to ascertain whether they have jurisdiction, have kept within it, and have acted according to law; and this involves ascertaining whether the tribunal acted on evidence which would warrant the conclusion reached, p. 617.</p> <p>2. When a writ runs to an inferior court the only question for determination is whether the court had jurisdiction or has exceeded it. p. 618.</p> <p>3. The legislative policy expressed in sec. 1265, Stats. 1921, that if in laying out a highway a bridge will be required which will exceed $300 in cost, the order of the town board laying out the highway shall not be effective unless approved, by the voters of the town, should not be thwarted by bargaining for the promotion of private interests, p. 620.</p> <p>4.' On proceedings to relocate a road, the state highway commission, in determining the cost of a bridge wbich will be “usable and reasonably safe for travel,” under sec. 1265, Stats. 1921, requiring approval of the relocation by the electors if the bridge is to cost more than $300, need not consider a contract by an interested private party to build a bridge to cost not more than $300. p. 620.</p> <p>5. A finding as to the cost of a bridge by the highway commission under sec. 1265, Stats. 1921, is a ministerial act and therefore not subject to review by certiorari, p. 620.</p>

E. Smalley, Circuit Judge. This is an appeal by the defendant commissioner of banking from a judgment in favor of the plaintiff in the sum of $44,048.20 damages and $83.05 costs. On June 8, 1922, the Montfort State Bank, being insolvent, discontinued doing business, and on June 10th the banking examiner of the state of Wisconsin took possession of all of the assets of the bank for the purposes of liquidation.

E. Smalley, Circuit Judge. An action by the administrator of the estate of Mary Straight to recover from the defendant, B. F. Straight, son of the deceased, certain moneys claimed to be due on a lease, and for the conversion of certain personal property of the deceased. The case was tried before the circuit court without a jury. The court found for the plaintiff and assessed the damages at $2,020. From-the judgment entered thereon the defendant appealed.

A. Richards, Judge. The testator, Joseph B. Rosecrantz, was a resident of Sparta, Wisconsin, and on the 12th day of March, 1895, he made and executed his will. The members of his family were his wife Adah and three sons, George W., Frank B., and Clark M. Rosecrantz. Clark M. Rosecrantz was the youngest and unmarried; George W. and Frank B. were both married at the time of the making of the will.

A. Richards, Judge. It appears that George Angle was committed to the poot-farm of Monroe county January 30, 1899. He remained an inmate of such farm until March 23, 1903, when he was adjudged insane and committed to the Monroe county hospital for the insane, since which time he has been continuously an inmate of said institution. From the time of his commitment until the month of June, 1919, he had no property of his own.

Park, Circuit Judge. The plaintiff below sued the defendant - for damages caused by a collision between the plaintiff’s automobile and an automobile owned by the defendant and driven by its employee. The case was tried before the court and a jury. The jury rendered a verdict for the plaintiff on all the issues.

Park, Circuit Judge. Damages for change of grade. By general ordinance adopted in 1898 the city of Stevens Point established the grade of certain streets, among which was Brawley street. Brawley street runs substantially east and west. Elk street intersects it at right angles. The plaintiff’s property is located at the intersection of Brawley and Elk streets and is on the easterly side of Elk street and on the south side of Brawley street.

Park, Circuit Judge. In 1865 one Mathias Brill purchased two tracts of farm land, the south half of the southwest quarter and the west half of the southwest quarter of the southeast quarter of section 2, town 24, range 7 east, in said county. A public highway was and is on the south line of such property. The .dwelling then and thereafter occupied on such farm was on the larger and westerly of the two tracts.

<p>Appeal from an order of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p>