Opinion
No. 289.
Argued April 28, 1970. —
Decided June 2, 1970.
APPEAL from a judgment of the circuit court for Milwaukee county: MARVIN C. HOLZ, Circuit Judge. Dismissed.
For the appellants there was a brief by Boren, Schmidt Fleming, attorneys, and Morton J. Schmidt of counsel, all of Cudahy, and oral argument by James E. Boren.
For the respondent Milwaukee county there was a brief by Kivett Kasdorf, attorneys, and Nonald J. Lewis and Thomas A. Wilson of counsel, all of Milwaukee, and oral argument by Mr. Lewis.
Facts.
This action seeks recovery for damages resulting when an automobile driven by plaintiff, Frank Look, struck a cutoff prepared for the pouring of concrete in a highway paving-grading construction project in Milwaukee county. The suit is against the highway contractor and Milwaukee county. A notice of injury was filed with Milwaukee county, and a claim was filed on August 8, 1968. The present action was instituted by service of summons and complaint on October 22, 1968. The defendant contractor answered, denying liability and raising certain affirmative defenses. The county answered, denying liability, raising certain affirmative defenses, and entering a plea in abatement, contending the suit was prematurely brought since plaintiffs' claim had not been disallowed by the county. The county subsequently moved to sustain its plea in abatement and for judgment dismissing plaintiffs' complaint without prejudice. Plaintiffs conceded that at the time of the institution of this action, there had been neither a formal denial of their claim by the county, nor had the time run for county board action as provided by statute. The trial court held the action to have been brought prematurely, granted the county's motion and dismissed the complaint and cross complaint for contribution without prejudice. Plaintiffs appeal. On oral argument, plaintiffs informed the court that the time for disallowance of the claim under the statute has now run, and that a second or successor summons and complaint, identical to the first as to the causes of action, has been served, filed and is pending in the circuit court for Milwaukee county.
Sec. 59.76, Stats., provides: "(1) No action shall be brought or maintained against a county upon any account, demand or cause of action when the only relief demandable is a judgment for money, except upon a county order, unless the county board shall consent and agree to the institution of such action, or unless such claim shall have been duly presented to such board and they shall have failed to act upon the same within the time fixed by law. . . .
"(2) The decision of the county board disallowing in whole or in part any claim of any person shall be final and a bar to any action founded thereon, except as provided in subsection (1), unless an action be brought to recover against the county within six months after such disallowance. Failure to allow a claim before the adjournment of the next annual session of the board after the claim is filed shall be deemed a disallowance."
If this case were to be decided by the flip of a coin, heads or tails, no one could lose. The trial court dismissed the complaint without prejudice, and an identical successor action has been started by the plaintiffs, perhaps using Xerox copies of the first complaint. If the trial court is here sustained, the plaintiffs proceed with the carbon copy second suit. If the trial court is reversed, the plaintiffs proceed with the first lawsuit, not the second. Thus the court's decision here could have no practical effect upon the controversy between the parties, except as to the case number to be attached to their lawsuit. That makes any decision by this court moot, and no good purpose would be served by ruling on an appeal that has become so clearly and completely without consequence.
By the Court. — Appeal dismissed.