Town of Winneconne v. Village of Winneconne

Had the village of Winneconne been duly incorporated in 1887, no contention is made but that, under the facts stated, it would have been liable to the town in this action for the license moneys which had not been actually *12used in the support of the poor. S. & B. Ami. Stats, secs. 1562,1562a. The complaint was dismissed, however, on the ground that at the time of the institution of the suit, and at the time the plea in abatement was made, there existed no such thing, either defacto or dejv/re, as the village of Winne-eorme, because the law under which it was attempted to be incorporated was unconstitutional. In re North Milwaukee, 93 Wis. 616. Leaving out of consideration for the moment the question of the effect of the supposed curative act of 1897 (ch. 5, Laws of 1897), this position seems to be unassailable because there was not even a defacto corporation. This court has held that there can be no de faeto corporation where there is no law authorizing the formation of a de jure corporation. Evenson v. Ellingson, 67 Wis. 634; Gilkey v. How, 105 Wis. 41. The appellant, however, contends that a plea in abatement, in order to be effective, must be true at the time of the trial of the action (citing Winner v. Kuehn, 97 Wis. 394); and that at the time of the trial the village of Wi/rmeconne had become a legal corporation by virtue of the provisions of ch. 5, Laws of 1897; hence that the plea should have been overruled. It is unnecessary in the present case to consider the legal effect of the last-named act. It will be considered and decided in the case which immediately follows this: Winneconne v. Winneconne, post, p. 13. Conceding. to it all the force that can be claimed for it as a curative •statute, we do not see how it can save the plaintiff in the present case. The general principle undoubtedly is that if •a plea in abatement is shown to be true when the pleading is made the plea is effective and the plaintiff must seek a better writ. This court and some other courts have allowed an exception to this general rule in case of a plea of former action pending by holding that if a former action be discontinued before the trial of the second action the plea will not be available. Winner v. Kuehn, supra. We are not aware, however, that this exception to the general rule has *13been extended to any other class of pleas in- abatement, nor are we referred to any eases so holding.

Other considerations in the present case seem to lead inevitably to the same result. The plaintiff obtained service upon a supposed corporation which did not exist defacto or de jure, and such supposed corporation made answer alleging its nonexistence. No answer nor notice of appearance was ever made or -served by the village of Winneconne after the passage of the supposed curative act. It is true the case was tried after the passage of that act, and it is recited that the defendant appeared by its attorney, but this must, we think, be held to refer to the original supposed defendant, in the absence of anything showing that the village created by the curative act had voluntarily come into court and taken up the defense. Furthermore, the curative act does not purport to save actions pending, but only to validate causes of action. Upon the whole record, we are satisfied that the action was rightly dismissed, both because the plea in abatement was effective, and because the present legally existing village of Winneconne has never been brought into court. '

By the Oov/rt.— Judgment affirmed.