#### Telford, Respondent, vs. The City of Ashland, Appellant.

*May 26*

June *23, 1898.*

*Municipal corporations: Ashland city charter: Appeal from disallowance of claim: Jurisdiction: Waiver.*

The charter of the city of Ashland (ch. 27, Laws of 1889) provides that no suit of any hind shall be brought against the city in any court, but the claim shall be presented to the common council, and from, its adverse action the claimant may appeal, within twenty days, to the circuit court. *Held,*that the jurisdiction of the circuit court over the subject matter depends upon an appeal duly taken, and hence the objection that an appeal was not taken within the prescribed time may be raised for the first time on appeal to the supreme court. So far as the decision in *Sheel v. Appleton,*49 Wis. 125, is contrary to this doctrine, it is overruled.

Appeal from a judgment of the circuit court for Ashland county: E. *W.*Helms, Judge.

*Reversed.*

The plaintiff was a lot-owner in the city of *Ashland,*and brought this action for an alleged illegal grading of the street in front of her lot. She filed her claim with the city clerk March 11,1896. On April 21,1896, the common council disallowed the claim; and, on May 29th following, she filed her notice of appeal to the circuit court, and bond, as required by the charter of the city, whereupon the papers-were transmitted to that court. Eormal pleadings were then made by the parties, the complaint alleging, among other things, that she had taken her appeal within the time limited by the charter, and the answer admitting that the plaintiff duly appealed. The action was tried, and resulted in a verdict in substance for the plaintiff, upon which judgment was rendered in her favor for $1,035, damages and costs, and the defendant appeals.

*E. E. Brossard,*for the appellant.

For the respondent the cause was submitted on the brief of *Gleason & Sleight*and *Geo. C. Foster.*

*239Winslow, J.

Tbe objection is raised that tbe circuit court bad no jurisdiction of tbis action, because tbe appeal from tbe action of tbe city council was not taken witbin twenty days after sucb action. Tbis objection was not taken in tbe trial court, and bence it is waived unless it goes to jurisdiction of tbe subject matter. Tbe provisions of tbe charter of tbe city of *Ashlcmd*on tbis subject (cb. 27, Laws of 1889) bave been before tbis court in a number of cases, tbe last of sucb cases being *Mason v.*Ashland, 98 Wis. 540, where tbe various sections are fully stated. It is sufficient to say here that they provide that no suit of any kind shall be brought against the city in any court, but that tbe claim shall be presented to tbe common council, and that tbe claimant may appeal from tbe council’s adverse action thereon witbin twenty days after sucb action. Tbis court has held that tort actions are included witbin tbis provision *(Koch v. Ashland,*83 Wis. 361); also, that tbe failure to appeal witbin tbe prescribed time is a complete bar to tbe claim *(Mason v. Ashland, supra).*

In tbis case tbe appeal was not taken within twenty days after tbe adverse decision of tbe council, but tbe action was tried without objection on tbis ground in tbe circuit court; and tbe question is whether it can be raised for tbe first time upon appeal in tbis court. Tbis question, as before indicated, depends upon tbe further question whether the objection goes to jurisdiction of tbe subject matter, or only to jurisdiction of tbe person; for it is familiar law that objections to tbe jurisdiction of tbe person are waived by going to trial without raising them in some appropriate manner, while objections to jurisdiction of tbe subject matter are always open. That tbe objection goes to jurisdiction of tbe subject matter seems not doubtful. Tbe jurisdiction of tbe circuit court over tbe subject of tbe action depends upon tbe appeal being duly taken. It can obtain jurisdiction over actions against tbe city in no other way. Tbe case is not *240essentially different from the case of an attempted appeal from justice’s to circuit court, where it has been frequently held that, if the appeal papers are defective in substance, the circuit court obtains no jurisdiction of the subject matter, and that the objection is not waived by going to trial. *Palmer v.*Peterson, 46 Wis. 401; *Plano Mfg. Co. v. Rasey,*69 Wis. 246, and cases cited. See *Bullard v. Kuhl,*54 Wis. 544. It is quite analogous to a case of change of venue, where the proper steps to make the change have not been taken, and where it has been frequently held that consent will not give jurisdiction. *Hager v. Falk,*82 Wis. 645; *Swan v. Porter,*96 Wis. 34. So far as the decision in *Sheel v. Appleton,*49 Wis. 125, is contrary to this doctrine, it must -be considered as overruled.

*By the*Gov/rt.— Judgment reversed, and action remanded with directions to dismiss the appeal.