#### Green Lake County, Appellant, vs. City of Eau Claire, Respondent.

*February 5*

April *30, 1918.*

*Municipal corporations: Claims: Notice of disallowance served by mail: Doubling of time for appeal.*

The twenty days allowed by sec. 25, ch. VII, of the Eau Claire city charter (Laws 1889, ch. 184) for an appeal from the disallowance of a claim by the common council is doubled, under sec. 2822, Stats., where the claim was one made by the county for „ aid furnished to poor persons and notice of its disallowance was served by mail 'as provided in secs. 1512, 2821, — such appeal, though not a “proceeding in a court of record,” being the commencement of an action in such a court and the proper, if not the only, way to proceed against the city.

Appeal from a judgment of tbe circuit court for Eau Claire county: James WioehaM, Judge.

*Reversed.*

Claim against tbe city of *Eau Qlaire*for aid furnished to a poor person while in *Green Lake County.*A nonresident poor person whose residence is alleged to be in the city of *Eau Claire,*while at the city of Berlin in *Green Lake County*was taken suddenly ill and was furnished necessary surgical and medical attendance and hospital service, the reasonable value of which is alleged to be $120. *Green Lake County*paid this bill, and on March 29, 1916, filed its duly verified claim against the city of *Eau Claire*with the city clerk. On April 25, 1916, the claim was disallowed by the common council of the city of *Eau Claire.*On April 14, 1916, the city clerk of the city of *Eau Claire*mailed a notice of dis-allowance to the county clerk of *Green Lake County*by registered mail, which notice was received by the clerk of *Green Lake County*on April 15, 1916. *Green Lake*County, by its district attorney, undertook to appeal from the decision, of the common council to the circuit court for Eau Claire county, and on May 12, 1916, mailed to the city clerk of the city of *Eau Claire*a notice of appeal, which was received by the city clerk on May 13, 1916, twenty-seven days after *305the notice of disallowance was received by the county clerk of *Green Lake Qounty.*The papers were transmitted to the circuit court for Eau Olaire county, and upon motion judgment of the court was entered dismissing the appeal, and from the judgment so entered plaintiff appeals.

Eor the appellant there was a brief by *Philip Lehner*of Princeton, district attorney of Oreen Lake county, and *W. W. Downs*of Olenwood and *Adolph P. Lehner*of Oconto Palls, of counsel, and oral argument by *Philip Lehner.*

Por the respondent there was a brief by *John B. Fleming,*corporation counsel, and *A. H. Shoemaker,*of counsel, both of Eau Olaire, and oral argument by *Mr. Shoemaker.*

The following opinion was filed March 5, 1918:

BoseNBerRY, J.

It is claimed by the plaintiff that by virtue of the provisions of sec. 2822, Stats., the notice of disallowance • of the claim having been served by mail as provided in sec. 2821, the time within which an appeal might be taken was doubled, pursuant to the provisions of sec. 2822, and that the notice of appeal was served in time. The procedure in matters relating to claims of one municipality against another for aid furnished to poor persons is prescribed by sec. 1512, Stats. 1917. The part thereof material here is as follows:

> “The clerk of any town, city or village disallowing any such claim on the part of a county shall, within the same time and in like mánner, give notice of such disallowance and until the same is received by the county clerk the time within which an appeal may be taken from such allowance or an action commenced shall not begin to run. The mailing within such ten days, by the proper officer, of any notice herein provided for, in the manner provided by section 2821 of the statutes, shall be a sufficient service of such notice.”

Sec. 25 of ch. VII of the revised charter of the city of *Eau Claire*(Laws 1889, ch. 184) reads as follows:

> “When any claim of any person, persons, company or cor*306poration against the city shall be disallowed, in whole or in part by the common council, such person, persons, company or corporation may appeal from the decision of the council disallowing such claim to the circuit court of the county of Eau Claire by causing a written notice of such appeal to be served on the clerk of said city within twenty days after the action of said council in disallowing such claim, and executing a bond to the said city with a sufficient surety, to be approved by the clerk, or a court commissioner of Eau Claire county, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant by the court.”

The real question is, of course, Does sec. 2822 apply to appeals taken pursuant to the provisions of the charter of the city of *Eau Claire*in cases within sec. 1612? Secs. 2821 and 2822 are under the title “Proceedings in civil actions in courts of record.” Good reasons might be given why this section does not apply. We feel, however, that where possible the statutes should be so construed as to protect the rights of parties in furtherance of justice. While an appeal from the disallowance of a claim by the common council of the city of *Eau Claire*is clearly not a proceeding in a court of record, nevertheless it is the commencement of an action, and the proper way, if not the only way, to proceed against the city, and we think it was the intention of the legislature, in prescribing that notice of disallowance of the claim might be served in the manner prescribed by sec. 2821, that service so made should be followed by the consequences provided in sec. 2822, and that the notice of appeal, therefore, in this case was in time. This seems a natural and reasonable construction, and if it does not conform to the legislative intent the remedy is plain and simple.

It is claimed that *Stevens v. Wheeler,*43 Wis. 91, rules this case. In that case there was an appeal from an order overruling a demurrer. It does not appear that there was any notice of entry of the order, but on the evening of the *307last day for appealing, appellant’s attorney mailed a notice of tbe appeal addressed to tbe clerk of tbe circuit court and to tbe attorneys for tbe respondent, neither of which was received by tbe parties to whom they were addressed. until some five days later. It may be true 'as said, that where a statute or rule requires notice of an act done to be given within a limited time there is no time of service to be doubled and tbe provisions of tbe section in question are wholly inapplicable. But reading that part of sec. 1512 relating to disallowance of tbe claim and notice thereof together with sec. 25 of cb. VII of tbe charter of tbe city of *JEclu Glaire,*it is plain that tbe time within which tbe appeal must be taken commences to run not from tbe time tbe claim is disallowed, but from tbe time notice thereof is received by tbe county clerk, and that therefore when notice is given by mail, as in this case, the time within which tbe appeal may be taken is forty days and not twenty days, in accordance with the provisions of sec. 2822, Stats.

*By the Court.*— Judgment reversed, and cause remanded for further proceedings according to law.

Tbe following opinion was filed April 30, 1918:

RoseNbeeby, J.

Tbe motion for rehearing is based upon two grounds: (1) because sec. 926 — 100, Stats., is decisive of tbe question involved, and (2) because sec. 926 — 100,‘ Stats., is not mentioned in tbe opinion of tbe court and was apparently overlooked.

It is thought by the moving pa¡rty that the decision in this casé in effect repeals tbe provisions of sec. 926 — 100, where service of notice of tbe disallowance of a claim is made by registered letter as therein provided. The material provisions of sec. 926 — 100 are as follows:

> “If tbe claimant be a nonresident tbe clerk shall transmit such notice by registered letter through tbe mail. Any time *308limited for appeal bj tbe claimant from tbe determination of bis claim by tbe council, shall begin to run when sucb notice is served, or wben sucb registered letter is received.”

Tbe decision was intended to bold no more than that sec. 2822, Stats., applies to appeals taken pursuant to tbe provisions of tbe charter of tbe city of *Eau Glaire*in cases within sec. 1512, Stats. Sec. 1512 prescribes bow appeals in cases embraced within its terms shall be taken, bow notice of tbe disallowance of tbe claim shall be served, and governs in matters of claims filed under that section and appeals taken from tbe disallowance thereof, and no further. It was not intended to bold, and tbe decision does not bold, that secs. 2821 and 2822, Stats., have any application to appeals taken pursuant to tbe provisions of sec. 926 — 100, except as to cases arising under sec. 1512.,

*By the Court.*— Motion for rehearing denied, without costs.