Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1883-06-20
Judgment or Def0UJt.

The following is the opinion in full OF
Judge Bum in the much-talked-of Worts
case delivered recently in the United
District Court at Madison:
In the Circuit Court oftbe United States for the West
erR District Of Wisconsin.
James GoOdersham Orts ct al, plaintiffs VS..
the City OF WatertoWn, defendant Jenkins,
WinIler 4 Smith, plaintiffs attorneys. opinion
By Bum, district Judge:
This action is commenced by James Gooder-
sham WOrts and others residents and citizens OF
! the Dominion OF Canada, ana subjects of Great
Britain, against the defendant, who is a NUM-
cipal corporation, organized under the laws of
Wisconsin, and a citizen of the State of Wis
consin to recover the sum Of SO 600 the pYinci-
pal Of ten certain railroad bonds Of $1,000 each,
lssuedby said city in the year of 1856, together
with accrued interest upon said bonds since
this date. There having been no appearance in
the case by the defendant. the plaintiffs make
application for judgment by default against the
defendant, and submit a question of law to this
court arising on the S1thclency of the service of
the summons upon the defendant city.
The Revised Statutes Of Wisconsin, Subdivi-
sion 3, Section 2637, provides that in actions
against city the service of summons shall be
made by delivering copy thereof to the Mayor
and the City Clerk. The Charter of the City of
WATERFOWL provides for mayer (See CHAPTER
233 of General Laws of Wisconsin, 1863, page 1861
But, by Chapter 169 of Section 5, Private and
Local Laws of Wisconsin for 1870 PAGE 800 q
resignation of the Mayor, in writing filed with
the City Clerk, takes effect from the time ofsuch
filing.
Chapter 3, Section 3, Laws of 1878, dispenses
with the signature OF tho Mayor to all warrants
and allows the City Clerk to issue them alone
Chapter 305, Private and Local Laws Of1S7l, pro
vldes Board Of Street Commissioners and con
ferS certain powers upon said board. Chapter
As, Laws OF 1879 Section p provides that the said
board shall have concurrent power with the
Mayor and Common Council Of said city in the
appointment of inspectors and clerks of cleo
and have q farroI
by law upon said Mayor and Common Council
subject to the control of said Common Council
except the power OF levylng taxes and which
they shall not have in any case whatever
The return Ofthe Marshal, as Endorsed upon
thesummons shows that he served the summons
upon the City OF WatertOWn by delivering q
copy thereof to Henry Beiber, City Clerk and
also copy thereof to Charles H Gardner CITY
Attorney. and agcopy thereof to Thomas Baxter
the last elected chairman of the Board of Street
Commissioners of said city. on the tWenty-tI1ird
day of December, 1882.
The Office of Mayor of said5city being vacant
and there being no President of the Common
Council nor presiding officer OF the Common
Council i'll office, the question for determination
IS whether or not thiS:s a good service and Suf-
Hclent service of summons, and we are clearly
OF the opinion that it is. The evident effect Of
Section :, Chapter 46 of the Laws of 1879 Fin con
nectlOn with the previous provisions of laws re-
terred to creating and organizing such Board of
Street Commissioners is to make the power of
the said Board of Street Commissioners and the
chairman thereof (eXceDt in the one respect of
power of levying taXes)equal in all things to
that OF the Mayor, and that upon the resignation
OF the Mayor, which resignation Of itself, upon
the fact of filing, without an acceptance thereof,
1pSo factO Vacates that office. The said Board Of
Street Commissioners and Chairman thereOfbe-
comes the mayor pro haec vice. and as such had
all the usual powers of mayor, including that Of
receiving service Ofthe summons in suits against
the city. There being q default in the case, the
plaintiff will be entitled to judgment, as prayed
for in the complaint
In this opinion Justice Harlan who SAT in the
case W tn the District Judge, concurs.
The damages and costs in this case as
given by the Court amount to $30,98418
against the city.
The non-appearance of the city in this
action was great mistake. An obiec-
ton to the service of the summons ought
to have been made-that said service
was bad-not being made upon the may
or and clerk The judge said: "There
being a default in the case the plaintiff
will be entitled to judgment as prayed
for in the complaint" The opinion was
given upon an ex-parte statement and
the merits of the case for the city were
not presented. Notice of motion has
been given to set aside the Judgment on
the ground that the service was bad
When all the facts get before the Court
it will not be expecting too much to look
for a reconsideration of this decision and
the setting aside of the judgment