#### Becker, Appellant, vs. Jones and others, Town Supervisors, Respondents.

*April 13*

May *2, 1916.*

*Sigliways: Laying out: Appeal, when to he talcen: “Determination:” Notice of time, etc., for appointment of commissioners: Service: Jurisdiction of justice.*

1. In sec. 1276, Stats. 1913, providing that any person aggrieved by an order of town supervisors laying out a highway “may, within thirty days after such determination, appeal therefrom,” the word “determination” refers to the filing of the written order in the town clerk’s office, as required by sec. 1269, and not to the oral or mental decision of the supervisors.

*2272. Upon such an appeal a failure to serve notice of the time and place for the appointment of commissioners upon at least two of the supervisors six days before such time, as required by sec. 1277, Stats. 1913, deprived the justice of jurisdiction of the subject matter; and such want of jurisdiction was not cured by subsequent voluntary appearance of the supervisors before the justice.

Appeal' from a judgment of tbe circuit court for Monroe county.: E. C. Higbee, Circuit Judge.

*Affirmed.*

This is an action in equity by the plaintiff to enjoin the defendant supervisors from entering on his farm and constructing a highway across it.

The facts are that the defendant supervisors upon due petition met May 12, 1914, and decided to lay out the highway. They filed the formal order laying the highway and awarding damages May 18th. Plaintiff on June 16th filed with the proper justice of the peace an application for an appeal pursuant to sec. 1276, Stats. 1913, which requires that the application be made within thirty days after the “determination” of the supervisors. The justice of the peace made out a notice as required by sec. 1277, Stats. 1913, to the effect that commissioners would be appointed on June 24th. This notice was served on one of the supervisors personally on June 17th and upon the other two by mailing, one copy being mailed June 17th and the other June 18th. One of the copies so mailed was received June 19th and there is no evidence as to the receipt of the other. On the 24th day of June the supervisors appeared before the justice and objected to the appointment of commissioners on the ground of lack of jurisdiction because the appeal was not taken within thirty days after the “determination” of the supervisors as prescribed by sec. 1276, *safra,*and because the notice to the supervisors was not served upon two of them six days before the appointment of the commissioners as required by sec. 1277, *supra.-*The' objection was overruled and the supervisors thereafter participated in the selection of commissioners. The commissioners so appointed afterwards met and reversed the order of the *228supervisors laying the road. On appeal from this decision to commissioners appointed by the county judge the reversal was affirmed. The supervisors now claim that the justice of the peace had no jurisdiction and hence that their order laying out the highway still stands unreversed. The plaintiff admits that notice of the appointment of commissioners was not given by the justice of the peace as required by sec. 1277, supra, but insists that this objection as'well as all other objections were waived by the voluntary participation of the supervisors in the proceedings after their objection to the jurisdiction of the justice had been overruled.

The circuit court on these facts held that the justice had no jurisdiction because of failure to give the statutory notice of the appointment of commissioners and hence that the *locus in quo*was a public highway, and the plaintiff appeals.

For the appellant there was a brief by *W. F. & A. 0.*Wolfe, and oral argument by *Lucien T. Reed.*

*ThorwaM P.*Abel, for the respondents.

WiNsnow, C. *J.*

In this case it is held:

1. Sec. 1276, Stats. 1913, relating to an appeal by any aggrieved person from the decision of the supervisors laying out a highway, provides that such person may, “within thirty ■days after such determination, appeal therefrom.” The word “determination” as here used refers to the filing of the written order in the town clerk’s office, as required by sec. 1269, Stats. 1913, and not to the oral or mental decision of the supervisors; hence the appeal to the justice of the peace was properly taken.

2. The failure to serve notice upon at least two of the supervisors of the time and place for the appointment of commissioners six days before such appointment, as required by sec. 1277, Stats. 1913, deprived the justice of jurisdiction of the subject matter, and this was not cured by the subsequent *229voluntary appearance of the supervisors before the justice. *Burns v. Spring Green,*56 Wis. 239, 14 N. W. 72; *State ex rel. Milliren v. Varnum,*81 Wis. 593, 51 N. W. 958. It follows that the order of the supervisors laying out the highway is unreversed, and that the complaint was properly dismissed.

*By the Court.*— Judgment affirmed.