no right of control one over the other. Prybilski v. Railway Co., 98 Wis. 413, 74 N. W. 117; Foley v. The Peninsular, 79 Fed. 972; Luebke v. Railway Co., 63 Wis. 91, 23 N. W. 136; Steamship Co. v. Cheney (Ga.) 12 S. E. 351. It should be noted in passing, however, that much which is said as to the giving of notice by the hatch-man as a protection to the plaintiff is misleading and confusing. If, as appears to be established by plaintiff's evidence, the scraper-man started his machinery without a signal, no hatch-man, however vigilant, could give any effective warning. The pressing of the lever by the scraper-man, and the starting of the rope, to the injury of plaintiff, were necessarily instantaneous. No observation by the man at the hatch could be communicated to the man in the hold so quickly as the motion was communicated to the rope. No matter what duties the hatchman may have had to give warning of danger, they could have no application to a danger like this, the effect of which, in the nature of things, was as instantaneous as his earliest possible discovery of it.

see no

2. Error is alleged because the court, upon motion to direct a verdict for defendant, first announced, "Nonsuit granted," and then withdrew that decision, and directed a verdict. This was done practically at once, before any change in the situation of the parties had taken place, and before the jury had been discharged. True, the noon recess had intervened, but nothing else. We can error in this. Surely, a moment for locus pœnitentiæ must be allowed courts. It certainly cannot be held that the moment a judge announces a conclusion he is at once foreclosed from any further consideration. Nothing is more common than for counsel to suggest impropriety of some order or decision when announced, and for the judge to modify it. It would have been entirely competent for the court, after announcing the granting of nonsuit, to have changed his mind, either on a reason suggested by counsel or one occurring to himself, and to have then submitted the case to the jury.

3. Numerous exceptions to exclusion of questions on cross-examination have been pressed upon our attention as errors. We have examined them all carefully, and, while in one or two instances the restrictions on plaintiff's cross-examination were somewhat severe, we do not think the discretion of the superior court was abused. Most of the excluded questions related to matters already fully covered by the cross-examinations. Others merely inquired whether the witness had already testified to certain facts. Still others were so worded that a direct answer would be capable of misconstruction. A question to Anderson, as to whether he could have seen a signal if given, might have been permitted, but its exclusion could not prejudice plaintiff. He had testified that he saw none, and, if his failure was due to his negligence, that could not promote plaintiff's case. We discover

no prejudicial error, and no evidence tending to prove negligence of defendant. Judgment affirmed.

DUGAL v. CITY OF CHIPPEWA FALLS. (Supreme Court of Wisconsin. Jan. 10, 1899.) INJURIES TO EMPLOYES-APPREHENSION OF DAN

GER--TRIAL-SPECIAL QUESTIONS.

1. An employé of intelligence and mature years, knowing the manner in which the work in which he is engaged is conducted, and the position and condition of the appliances used, is bound to apprehend the dangers of his employment.

2. In an action by the administrator of an employé who was killed by the falling of a beam that had rested unsecured on iron plates, it was error to submit a question to the jury as to whether plaintiff's intestate knew of the manner in which the work was conducted by defendant, and the position and condition of the beam and plates, and apprehended the dangers resulting therefrom, as the question is compound, three different questions being incorporated in it.

3. The error was material, notwithstanding a negative answer to the question, and to another question, whether deceased was guilty of contributory negligence, where there was no instruction that the act of remaining in the employment with knowledge of unusual danger was contributory negligence, as the fact that the inquiry whether deceased was bound to apprehend the danger was contained in the former question might cause the jury to disregard such inquiry in answering the latter.

Appeal from circuit court, Chippewa county; A. J. Vinje, Judge.

Action by Annie Dugal, as administratrix, against the city of Chippewa Falls. Judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff's intestate was killed by the falling on him of a heavy stick of timber, which was being fastened in place under an existing bridge by deceased and another employé of the city. Ten similar operations had been performed in the course of the work, and plaintiff had been employed for about two weeks as a common laborer; but the evidence is conflicting as to the extent to which he had been connected with the previous operations, so as to have knowledge of their character and perils. In the operation, the beam in question rested unsecured upon two iron plates, preparatory to being bolted to another beam. It was claimed by plaintiff that necessary and reasonable care to provide against its falling off required that the beams should be fastened together either by clamps or chains, a precaution which had not been taken with reference to any of the preceding ones. It was also claimed that the particular iron plates upon which this beam rested were unusually short, and tipped downward, so as to render the peril of this particular beam slipping or tipping off greater than usual. There was a conflict of evidence as to decedent's knowledge and means of knowledge of these facts. Deceased was ordered to assist in the work at a time when it is claimed it was too dark for him to see the

peril. By consent of the parties, five questions were submitted to the jury as a special verdict, which, with their answers, were as follows: "Question No. 1: Was defendant guilty of a want of ordinary care in putting in place the needle beams in question without using clamps or chains or other means for holding such beams in position on the plates while they were being so put in place? Answer: Yes. Question No. 2: If you answer question number one in the affirmative, then was such want of ordinary care the proximate cause of the death of plaintiff's intestate? Answer: Yes. Question No. 3: Did plaintiff's intestate, Joseph Dugal, know of the manner in which the work was conducted on the part of the defendant, and the position and condition of the beam and plates in question, and apprehend the dangers resulting therefrom? Answer: No. Question No. 4: Was plaintiff's intestate, Joseph Dugal, guilty of any want of ordinary care that contributed to his death? Answer: No. Question No. 5: What sum of money will compensate plaintiff for the damage she has sustained by reason of the death of her husband? Answer: $4,000." Defendant moved to set aside such verdict, and each of the special findings thereof, and to grant a new trial. Judgment was entered in favor of the plaintiff, from which this appeal is taken.

W. M. Bowe and James J. Lunney, for appellant. F. F. Frawley, for respondent.

DODGE, J. (after stating the facts). Special objection is made to question No. 3 and its answer. That question, it is apparent, is compound. Three different questions are incorporated in it, and are connected, not by the disjunctive, but by the word "and." In order to answer the question "Yes," it would be necessary for the jury to be satisfied of all three, namely: That Dugal knew of the manner in which the work was conducted on the part of the defendant; secondly, that he knew the position and condition of the beam and plates in question; and, thirdly, apprehended the dangers resulting therefrom. If the jury had not been satisfied that he knew all three of these things, they must have answered the question "No." They may have been satisfied that he knew the manner in which the work was conducted, and the position and condition of the beams and plates in question, but were not satisfied that he apprehended the dangers resulting therefrom, which would have been substantially a finding for the defendant if properly expressed; for, if he knew the facts, he was bound to apprehend the danger, he being of mature years and ordinary intelligence. Dahlke v. Steel Co. (Wis.) 76 N. W. 362; Hennesey v. Railway Co., 99 Wis. 109, 74 N. W. 554; Jones v. Sutherland, 91 Wis. 587, 65 N. W. 496; Hazen v. Lumber Co., 91 Wis. 208, 64 N. W. 857. The question is obnoxious to the criticism made by this court in Klochinski v. Lumber Co., 93 Wis.

417, 67 N. W. 934, and Sherman v. Lumber Co., 77 Wis. 14, 45 N. W. 1079, and leaves the case wholly without any finding on the subjects involved therein. In other words, while the jury have found, first, that the city was guilty of negligence, which, second, was the proximate cause of the death of plaintiff's intestate, and, fourth, that deceased was guilty of no want of ordinary care which contributed to his death, they have not found whether or not he had that knowledge from which would result an assumption of the risk by him, so as to preclude the defendant from liability, unless they have found it by implication in their answer to the fourth question.

Counsel for respondent argued orally with much force that the third finding is immaterial, as the assumption of an unusual risk, such as this undoubtedly was, is contributory negligence, and the jury have, in answer to the fourth question, found deceased guiltless of any contributory negligence. This position finds much support from the opinion in Powell v. Steel Co., 98 Wis. 35, 73 N. W. 573. If, in the case at bar, the third question had neither been requested nor put, and the instructions had given the jury to understand that the question as to contributory negligence involved consideration of the assumption of the risk, we might think that such assumption had been negatived by the answer to the fourth question. In Hennesey v. Railway Co., 99 Wis. 109, 74 N. W. 554, this court pointed out a clear distinction, applicable more strongly here, between that case and Powell v. Steel Co. In the Hennesey Case the court below refused, on defendant's request, to submit a question as to decedent's knowledge of the perils, and the court held it error. As well stated by Mr. Justice Winslow in that case: While continuing in an employment with knowledge of unusual risks is contributory negligence on the part of an employé, it is only one specific phase, and not likely to occur to the jury in that connection, unless expressly called to their attention by instructions, and, in absence of such careful instructions, ought to be submitted in a separate question. Applying the same reasoning to the instant case, we find, not only that such assumption of the risk was not pressed on the jury as one of the things which would constitute contributory negligence, but was carefully differentiated therefrom. They were instructed, in answering the fourth question, to consider the various other acts and omissions which might constitute contributory negligence on decedent's part, with no hint that remaining in the employment with knowledge of the perils was one of them. Not only this, but they were told to consider such conduct in a wholly different connection, namely, as only affecting their answer to the third question. The jury must have understood that, although they found deceased fully conversant with the situation and its perils, so that they must answer the third question in the affirmative,

they were nevertheless justified in finding absence of contributory negligence in answering the fourth. We cannot think, in view of the instructions in this case, that the jury did in fact consider and negative decedent's knowledge of the risk in answering the fourth question. Such knowledge was one of the material issues in the case, and, unless negatived by the jury, would defeat a recovery. We conclude, therefore, that the third question and its answer should have been set aside, and that the facts as found by the verdict are not sufficient to support the judgment in favor of plaintiff. Judgment reversed, and action remanded for a new trial.

1. A finding as to which there is no exception I will not be disturbed.

2. Defendant, being liable to plaintiffs for services in taking orders for machinery, which were filled by defendant, it is immaterial that defendant had some of the customers execute new written orders.

3. Admission of evidence in a trial by the court without a jury is not reversible error.

Appeal from circuit court, Green county; John R. Bennett, Judge.

Action by A. D. Merriman and others against the McCormick Harvesting Machine Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

The facts out of which this case grows, and the decision of the general questions of law involved therein, will be found in 96 Wis. 600, 71 N. W. 1050. Under the order in that case a reference was had, testimony taken, and the referee's report confirmed, finding that of the 29 orders there mentioned 19 were afterwards filled with McCormick machines, and that the value of the plaintiffs' services in obtaining said orders was $317. Defendant again appeals.

Quarles, Spence & Quarles, for appellant. L. B. Caswell and W. H. Rogers, for respondents.

DODGE, J. 1. We have carefully examined the evidence in this case, and find that there is support for the findings as to the filling of all of the orders except that of Charles Maske, and also as to the value of plaintiffs' services. There is no exception to the finding as to the filling of the Maske order. Under the uniform rule of this court, therefore, the findings will not be disturbed.

2. The second and third assignments of error are predicated on the refusal of the referee to admit certain evidence. The defendant offered to prove that "the McCormick Company, after the 22d of March, 1893, retook of the [six] men named separate, distinct, and new orders

for machinery manufactured by the McCormick Company, which orders were afterwards filled by the delivery of the machines called for by those orders." The rest of the offer was of purely hearsay evidence. Defendant also offered the "retaken" written orders. The evidence was wholly immaterial. The issue submitted to the court below was a very simple one, namely, how many of the orders taken by the plaintiffs were filled with McCormick machines? The fact that the defendant, for reasons of its own, saw fit to have these customers execute new written orders could in no wise change the result. If it delivered machines to the persons from whom the plaintiffs had taken orders, its liabil ity for reasonable compensation to the plaintiff's was established by the previous decision in this case. Had the defendant proved, as it offered, that certain of the orders were "retaken," it would in no wise have militated against that liability. That was a transaction to which plaintiffs were not parties, and could not deprive them of their rights to compensation for the services rendered.

3. The fifth assignment of error ignores the rule that admission of evidence in a trial by the court without a jury cannot constitute reversible error. Judgment affirmed.

SEEGER v. CITY OF ASHLAND. (Supreme Court of Wisconsin. Jan. 10, 1899.) CLAIM AGAINST CITY-APPEAL-LIMITATIONS

WAIVER.

A city charter prohibiting the council from considering or allowing the claim against the city after it had once been disallowed in whole or in part, and providing that failure to pass on the claim within 60 days should be deemed a disallowance, and for an appeal from a disallowance within 20 days, held that, where the council had not acted on a claim for 60 days, it could not, after the time for appeal had expired, by an express vote of disallowance thereof give the claimant a right to appeal within 20 days from such express disallowance.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action of William Seeger against the city of Ashland. From a judgment for plaintiff, defendant appeals. Reversed.

The plaintiff on August 16, 1894, filed with the city clerk of Ashland claim for injury at the hands of a mob on one of the streets in said city. No action was taken upon said claim until October 23, 1894, when the council voted to disallow it. On November 10th the plaintiff gave notice of appeal, accompanied by an undertaking, filed copies thereof in the circuit court for Ashland county, and thereafter filed complaint in due form, to which the defendant answered a general denial, without raising objection either to the time of taking the appeal or to the sufficiency of the appeal papers. After the venue of the case had been changed to Douglas county, the defendant, then represented by a different at

torney, filed a motion in writing to dismiss the plaintiff's appeal upon the grounds-First, that the court had no jurisdiction of the defendant; second, that the court had no jurisdiction of the subject-matter of the action; and, third, that no sufficient bond was given upon appeal. That order was denied, and exception taken. Upon the case coming to trial, the defendant objected to the introduction of any evidence under the complaint, and asked for judgment of nonsuit, on the grounds, among others-First, that the court had no jurisdiction of the person of the defendant; and, second, that the court had no jurisdiction of the subject-matter,-which were overruled and excepted to. Trial was had, and judgment for the plaintiff, from which the defendant appeals.

E. E. Brossard, for appellant. Cate, Sanborn, Lamoreux & Park, for respondent.

DODGE, J. (after stating the facts). That an appeal within 20 days after the disallowance of a claim against the city of Ashland is a jurisdictional requirement, and that a failure to so appeal is not waived by pleading to the merits, as would be a statute of limitations, is settled, and needs no further argument. Telford v. City of Ashland (Wis.) 75 N. W. 1006. The question presented here is whether the present appeal is within that statutory limit. It was taken more than 20 days after the expiration of 60 days from the filing of the claim with the common council, but less than 20 days after a later express vote of disallowance thereof. The language of the charter provision of Ashland has been before this court in numerous cases recently, and is set out fully in Mason v. City of Ashland, 98 Wis. 540, 74 N. W. 357. In Fleming v. City of Appleton, 55 Wis. 90-92, 12 N. W. 463, this court, construing similar provisions in the charter of the city of Appleton, said: “Under the charter, nonaction upon the claim for 60 days after its presentation is as much a decision of disallowance as an affirmative vote to that effect. The failure during such period to allow, in whole or in part, was, by force of the statute, a determination of disallowance, from which an appeal could be taken." In Watson v. City of Appleton, 62 Wis. 267269, 22 N. W. 476, the court says: "The neglect or refusal of the common council to act upon the plaintiff's claim for 60 days after it was presented must be deemed and taken to be a disallowance of the claim. At that time the right to appeal to the circuit court, as in the case of a disallowed claim, accrued and was complete. When

the nonaction of the common council had worked a disallowance of the plaintiff's claim, she should have taken her appeal to the circuit court within the time prescribed by the charter." In Mason v. City of Ashland, supra, the court say: "The right of appeal was perfect at the expiration of 60 days from the time of presentation of the claim to the com77 N.W.-56

mon council for allowance by filing the same with its clerk for action thereon." Certainly the intimation from all these decisions is towards the conclusion that this claim was as completely "disallowed by the council" on the 16th day of October as if the council had voted its disallowance. The right to appeal then became perfect, and the duty to appeal, if he did not intend to be concluded, was then cast upon the claimant. In Gutta-Percha & Rubber Mfg. Co. v. City of Ashland (Wis.) 75 N. W. 1007, it is held that either the allowance or disallowance of a claim by the council has substantially all the conclusiveness of a judgment, to the extent even that allowance will support mandamus to compel levy of tax to pay, in full analogy to a judgment. A disallowance is made quite as conclusive by the charter, which provides (Laws 1889, c. 27, subc. 21, § 8): "In case any person shall present his claim or demand against said city, and the common council of such city shall disallow such claim in whole or in part, the common council shall not again consider or allow such claim." The purpose of this legislation is obvious, namely, that the public treasury shall be free from the peril of repeated solicitation of successive councils or other public officers by claimants. It is to protect not only against the persistent cupidity of claimants, but against the yielding thereto of public officials. We have already held in Telford v. City of Ashland that this protection cannot be waived by the city attorney by neglecting to plead the statutory prohibition. That it cannot, after a disallowance, accomplished either by vote of the common council or by its nonaction for 60 days, be waived by any action the common council may take, is an equally necessary construction, if we would give full effect to the legislative intent. After such disallowance, the council is prohibited, not only from allowing the claim, but from considering it. It can neither subject the treasury to a certain burden by a vote of allowance, nor, as claimed to be accomplished in this case, can it, by an express vote of disallowance, subject that treasury to the contingent burden which would result from an enlargement of the time for an appeal. The legislature has deemed it necessary to throw these burdens upon the claimant and restrictions upon the municipal officers in order to protect the public moneys of the municipality, and we cannot review the wisdom nor impair the efficacy of its enactments, were we at all inclined to do so. We hold, therefore, that the claim in this case became disallowed on October 15th; that the appeal could only be taken within 20 days thereafter; that the common council could not and did not waive such restriction, nor extend the time; and, as a result, that the circuit court acquired no jurisdiction of the subject-matter, and should have granted the defendant's motion to dismiss. We cannot properly, therefore, and do not, consider any of the other errors assigned. The judgment of the circuit court is reversed,

and the cause remanded, with direction to dismiss the appeal from the action of the common council.

MAGNUSON v. CLITHERO et al. (Supreme Court of Wisconsin. Jan. 10, 1899.) QUIETING TITLE-RIGHT OF ACTION-COMPLAINTJUDGMENT-EFFECT.

1. A plaintiff, holding in her possession notes and a mortgage adjudged to her in an action against her husband for divorce, brought an action over a year thereafter to amend the divorce judgment because it did not correctly describe them. A judgment was rendered directing the amendment, and authorizing foreclosure of the mortgage in all respects as if the notes had been made to plaintiff originally. Service of process was made on her husband and the mortgagor. Held, that all parties were bound thereby, whether the divorce judgment was valid or not, and whether the court had jurisdiction to amend the same or not.

2. An action will lie to quiet title to personal property.

3. A complaint setting forth that a divorce judgment intending to transfer a mortgage to plaintiff incorrectly described the same, that the notes and mortgage were in her possession, and claimed by her, and praying that the rights of all the parties might be ascertained, adjudged, and enforced, and that the divorce judgment might be amended to correspond with the facts, is broad enough to cover a judgment of quia timet as to the notes and mortgage.

Appeal from superior court, Douglas county; C. Smith, Judge.

Action by Sara Magnuson against Electa Clithero and others to foreclose a mortgage. A judgment by default was vacated on the application of the mortgagor, and from a judgment in favor of the mortgagor plaintiff appeals. Reversed.

A judgment of limited divorce was granted between Sara Magnuson and Elias Magnuson at the suit of the former. Service upon the defendant was by publication. There was no appearance by the defendant. The order of publication was based on a complaint setting forth a cause of action for divorce on the ground of desertion, and also for failure to support, none of the allegations being on information and belief, and the verification being in the form prescribed by statute, omitting the words as to personal knowledge of the truth of the allegations. By the judgment a final division of defendant's property was attempted to be made between the parties, and it was subsequently found that a certain mortgage, and the debt thereby secured, awarded to Sara Magnuson, being the mortgage here in suit, was so described as not to be clearly conveyed by the judgment. More than a year after the entry of the divorce judgment an independent action was commenced by Sara Magnuson against her divorced husband, in which the mortgagor, respondent here, was made a defendant for the purpose of correcting the judgment of divorce, so as to correctly describe the mortgage. Service on Magnuson was made and jurisdiction as

to him was obtained by publication of the summons. The complaint set forth that it was intended by the divorce judgment to transfer to plaintiff the mortgage in question; that it was incorrectly described therein; and that the notes and mortgage were in the possession of the plaintiff and claimed by her as her property. The prayer, among other things, was that the rights of all the parties might be ascertained, adjudged and enforced, and that the divorce judgment might be amended to correspond with the facts. The court found the facts in accordance with the allegations of the complaint and rendered judgment directing the divorce judgment to be amended accordingly, and further, in substance, that plaintiff was authorized and empowered to foreclose the mortgage in all respects as if it and the notes were made to her originally. Subsequently plaintiff commenced this action to foreclose the mortgage, making Elias Magnuson a party, and obtained jurisdiction as to him by publication. Judgment was obtained by default. In about five months thereafter the mortgagor applied for leave to answer on an affidavit setting forth that she did not answer within the time allowed therefor, putting in issue plaintiff's title to the notes and mortgage, because she supposed, and had good reason to suppose, stating the facts, that the amended divorce judgment vested title to the property in plaintiff; that promptly upon being informed to the contrary she applied to the court to vacate the foreclosure judgment and to be allowed to come in and litigate the question of title. The motion was granted and issue was joined between the plaintiff and the mortgagor as to whether the former was the owner of the mortgage indebtedness and the security. That issue was decided against the plaintiff upon the ground that the order of publication in the divorce action was void because the complaint was not properly verified. Plaintiff's attorney properly excepted to each of the rulings of the court, leading up to the final result, so as to preserve for review the question of whether the proceedings referred to vested title to the mortgage and the mortgage debt in plaintiff, and whether the court erred in amending the foreclosure judgment.

P. H. Perkins, for appellant. R. I. Tipton and Lyman T. Powell, for respondents.

MARSHALL, J. (after stating the facts). Many questions are discussed in the briefs of counsel and others suggested by the record, which are rendered immaterial because of the legal effect of the judgment rendered in the second action, which determined the rights of plaintiff and Elias Magnuson in respect to the notes and mortgage. The learned trial court vacated the judgment in this action upon the theory that the title to the property in ques tion depended on the validity of the divorce judgment. That was erroneous. It is not material to this case or to plaintiff's title to