Conklin v. City of Marshalltown

• Decision Date: 24 April 1885
• Citation: 23 N.W. 294,66 Iowa 122
• Parties: CONKLIN v. THE CITY OF MARSHALLTOWN
• Court: Iowa Supreme Court

23 N.W. 294

66 Iowa 122

CONKLIN v. THE CITY OF MARSHALLTOWN

Supreme Court of Iowa, Davenport

April 24, 1885

Appeal from Marshall Circuit Court.

THE plaintiff seeks by this action to recover the value of a horse, which he claims was killed by falling into a sewer which was negligently constructed and negligently allowed to become out of repair by the defendant. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.

REVERSED.

Brown & Carney, for appellant.

Caswell & Meeker, for appellee.

OPINION

ROTHROCK, J.

I.

The petition in the case was filed on the twenty-ninth day of November, 1884, and the next term of the court commenced on the tenth day of December. The defendant appeared at the next term and moved to discontinue the action because the petition was not filed ten days before the term. Section 2600 of the Code provides that "if the petition is not filed by the date thus fixed, (in the notice,) and ten days before the term, the action will be deemed discontinued." Section 45, sub. 23, of the Code is as follows: "In computing time, the first day shall be excluded and the last included unless the last falls on Sunday, in which case the time prescribed shall be extended so as to include the whole of the following Monday." By excluding the twenty-ninth day of November, the ninth day of December would be the tenth day, which was Sunday. But the statute requiring that the last day, if it falls on Sunday, shall be excluded, applies only where some act is to be done on the last day. This precise question was determined in Robinson v. Foster, 12 Iowa 186, under the statute then in force, and which was substantially the same as sub. 23, § 45, of the Code. The motion to discontinue was properly overruled.

II. It appears that the plaintiff's horse was injured by the giving way of a wooden box sewer, which was constructed across one of the streets of the city. The sewer was constructed along one side of the street for some distance and in its course it was laid under two cross-streets, and covered with earth at the crossings so as to permit travel over it. The accident happened by the breaking down of the sewer at one of these crossings. It was claimed that the sewer had become decayed and rotten, and that the city authorities had notice of its condition, or that it was so notoriously defective that the city should be charged with notice. The...