This action was commenced on January 29, 1965, by Foreway Express, Inc., to recover $430.20 for damages allegedly caused by the defendant's negligence in failing to provide an unobstructed roadway. Although the "city" of Hilbert is the named defendant, the appellant asks the supreme court to take judicial notice of the fact that Hilbert is a village.

The plaintiff's complaint alleged that on September 16, 1963, a tractor-truck driven by its agent struck a low-hanging tree and was damaged in the amount of $430.20. It further alleged that the accident was caused by the defendant's negligence in failing to remove the obstruction and that both the "Mayor of Hilbert" and the "president of the Village of Hilbert" had notice of the plaintiff's claim. There was no allegation that the claim was presented to the village board or that it was disallowed.

The defendant demurred to the complaint. On February 24, 1966, the county judge by order overruled the demurrer. The defendant appeals from this order.

Statutes Involved.

Sec. 62.25, Stats.:

"Claims and actions. (1) CLAIMS. (a) No action shall be maintained against a city upon a claim of any kind until the claimant shall first present his claim to the council and it is disallowed in whole or in part. Failure of the council to pass upon the claim within 90 days after presentation is a disallowance."

Sec. 61.51, Stats.:

"Auditing accounts. . .

"(4) Section 62.25(1) shall be applicable to villages."

GORDON, J.

The complaint to which the defendant demurred does not allege that a claim was presented as required by sec. 62.25(1) (a), Stats. Although this section relates to claims against cities, it is expressly made applicable to villages by sec. 61.51(4), and we take judicial notice that Hilbert is a village. State of Wisconsin 1966 Blue Book, 620; Milwaukee v. Sewerage Comm. (1954), 268 Wis. 342, 353, 67 N.W.2d 624; Smith v. Janesville (1881), 52 Wis. 680, 9 N.W. 789.

In view of the statutory requirement that "no action shall be maintained" until the claimant "shall first present his claim to the council," it is clear that the plaintiff failed to comply with the conditions precedent to suit. The failure to file a claim is fatal, as this court has held in Seifert v. School Dist. (1940), 235 Wis. 489, 497, 292 N.W. 286.

In Steltz v. Wausau (1894), 88 Wis. 618, 621, 60 N.W. 1054, we upheld an order sustaining a demurrer to a complaint which failed to allege compliance with similar provisions contained in a city charter because "the section makes . . . the presentation of such claim a condition precedent, not only to the maintenance of such an action, but to the commencement of such an action." See also Firemen's Ins. Co. v. Washburn County (1957), 2 Wis.2d 214, 228, 85 N.W.2d 840; Sauk County v. Baraboo (1933), 211 Wis. 428, 248 N.W. 418; Moyer v. Oshkosh (1913), 151 Wis. 586, 139 N.W. 378. A related question is considered in Pattermann v. Whitewater, ante, p. 350, 145 N.W.2d 705.

Although the respondent did not file a brief in this court on appeal and did not appear at the oral argument, we have chosen to rule on the merits of the controversy rather than to reverse as a matter of course under sec. 251.57, Stats. Accordingly, we conclude that under sec. 62.25(1) (a) a complaint in a tort action against a village or a city is demurrable when the complaint fails to allege that a claim has been presented to the board or council and has been disallowed.

By the Court. — Order reversed.