#### The Town of Ackley, Respondent, vs. The Town of Vilas, Appellant.

*February 7*

*February 24, 1891.*

*Towns: Apportionment of debt upon division.*

1. Where, upon creating a new town out of territory severed from an old town in November 1886, the county board attempted to *prorate*the indebtedness of such old town, as required by sec. 672, B. S., but made the apportionment according to the assessment roll thereof for 1885, and thereby charged the new town with a considerably less portion of the debt than if such apportionment had been made according to the roll of 1886, *held,*that it could not resist payment of its proportion on the ground that the apportionment was not made as required by statute and the ordinance of the county board.

2. If the new town i ef uses to pay its proportion of the indebtedness, the old town can maintain an action to recover the amount

APPEAL from tlie Circuit Court for *'Langlade*County.

The following statement of the case was prepared by Mr. Justice Cassoday:

The amended complaint alleges, in effect, that November 11, 1886, and for some years prior thereto, the territory embraced in the town of *Vilas*constituted and was a part of the town of *Aeltley*in the county of Langlade; that November 11, 1886, the county board of that county, at a regular meeting thereof, passed an ordinance whereby township 32 was detached and separated from said *Acldey,*and incorporated into the town of *Vilas,*and providing that said town of *Vilas*should organize and go into effect at the general spring election in April, 1887, and that, until then, it should remain a part of the town of *Acldey;*that the indebtedness of the town of *Acldey*be divided and apportioned between the two towns *pro rata*according to the last previous assessment rolls of the old town of *Acldey;*that a committee was thereupon appointed, and subse*158quently another, to act for the county board in conjunction with the town board of Acldey, in estimating such indebtedness, and to mate a settlement between the two towns accordingly; that said new committee thereupon made such division, apportionment, and settlement, and such indebtedness was-by them apportioned from the assessed valuation of said territory for the year 1885, instead of the year 1886, as named in said ordinance; that the aggregate amount of the indebtedness of the old towm was $4,394.56, and the apportionment of the same from said assessment of 1885 made the town of *Acldey*liable for $2,154.58, and the town of *Tilas*liable for $2,239.98, and said committee reported to the county board accordingly, and their report was adopted at a regular meeting of the board, November 15, 1887; that, had said indebtedness been apportioned according to the assessment of 1886, as required by the ordinance, instead of the assessment of 1885, the town of *Vilas*would have been liable to pay $2,360.82, and the town of *Acldey*would have been liable to pay $1,929.26, instead of the amounts mentioned; that by reason of the premises the town of *Vilas*became indebted to the town of *Acldey*in the sum of $2,239.98, no part of which has been paid, except $90 interest; that the plaintiff has frequently demanded payment of said indebtedness from the defendant, but it has at all times refused and neglected to pay the same, or any part thereof, except as stated; that March, 1889, and before the meeting of the town board of audit, the plaintiff made, and filed with the town clerk of *Vilas,*a statement of its account, and demanded payment in writing, -but that the same was wholly disallowed by *Vilas’,*that more than ten days elapsed since the last annual town meeting in *Vilas*before the commencement of this action; and the plaintiff prays judgment accordingly.

To that complaint the defendant demurred, as not stating facts sufficient to constitute a cause of action, and that *159the plaintiff had no legal capacity to sue. From the order overruling that demurrer the defendant brings this appeal.

For the appellant the cause was submitted on the brief of *Schintz & Hogan.*

They contended that the county board should have made the apportionment at the time of creating the new town, and according to the assessment roll of 1886. It had no power to make it a year later, nor according to the roll of 1885, and its acts in respect thereto are void. That the result was more favorable to the defendant than it would otherwise have been does not make the apportionment valid. The plaintiff has mistaken its remedy, and should have proceeded by *mandamus. School Fist. v. School Fist. 3*Wis. 333; *State esa rel. Ordway v.*Smith, 11 id. 65; *State ex rel. Van Vliet v. Wilson,*17 id. 687; *Joint Free High School v. Green Grove,*77 id. 532.

*Thomas Lynch,*for the respondent.

Cassoday, J.

The ordinance dividing the town of *Ach-ley,*and creating out of a portion of it the town of *Vilas,*required the indebtedness of the old town to be apportioned between the two towns according to the assessment of 1886. The ordinance followed the mandate of the statute which .required the county board to divide such indebtedness *pro rata*according to the last previous assessment roll of the old town. Sec. 672, R. S. But in making such division the board departed from the rule thus prescribed, and made the same according to the assessment of 1885. In doing so, however, it is very manifest from the complaint that the town of *Vilas*is required to pay a considerably less sum than it would have been required to pay had the division been made according to the ordinance and the statute. This being so, it is contended that the defendant is not injured, and hence is in no position to object. The statute expressly requires this court to disregard any error or defect in the pleadings or proceedings, not affecting the *160substantial rights of the defendant. See. 2829, E. S. This court has frequently refused to reverse by reason of errors or defects not affecting the substantial rights of the adverse party. See cases cited in Sanborn *&*Berryman’s notes to the section last named. The sole object of allowing an appeal is to benefit the “ party aggrieved.” Sec. 3048, E. S.; *McGregor v.*Pearson, 51 Wis. 122; *Eureka S. H. Co. v. Sloteman,*67 Wis. 126. Counsel insist that the plaintiff’s remedy, if any, is by *mandamus,*and they cite in support of this contention, *Joint Free High School Dist. v. Green Grove,*77 Wis. 532. In that case the statute, if applicable, imposed a simple legal duty upon the officers of the town. The same is true with *Waupaca Co. v. Matteson, ante,*p. 67. The case at bar is more like *Outagamie Co. v. Greenville,*77 Wis. 165, where the statute required the town to reimburse the county for the expenses paid, and hence was the basis of an action. Here the statute requires the new town to “ pay ” its proportion of the indebtedness of the old town; or in other words, to reimburse the original town for any payment made by it in excess of its proportionate share. Sec. 672, E. S. Such statute is the basis of an action to recover a money judgment, especially where, as here, the amount to be recovered is open to controversy. Such actions have been repeatedly maintained. *Depere v. Bellevue,*31 Wis. 120; *Seymour v. Seymour,*56 Wis. 314; *Waupun v. Chester,*61 Wis. 401; *Forest Co. v. Langlade Co.*76 Wis. 605.

*By the*Court.—The order of the circuit court is affirmed.