Atherton v. Village of Bancroft

• Decision Date: 14 September 1897
• Court: Michigan Supreme Court
• Parties: ATHERTON v. VILLAGE OF BANCROFT.

72 N.W. 208

114 Mich. 241

ATHERTON v. VILLAGE OF BANCROFT.

Supreme Court of Michigan

September 14, 1897

Error to circuit court, Shiawassee county; Stearns F. Smith, Judge.

Action by Mary Atherton against the village of Bancroft. There were verdict and judgment in favor of plaintiff, and defendant brings error. Affirmed.

Selden S. Miner and M. V. B. Wixom (Timothy E Tarsney, of counsel), for appellant.

Watson & Chapman, for appellee.

LONG C.J.

This action was brought to recover for an injury received by the plaintiff upon a defective sidewalk in the defendant village on July 12, 1894. The case was tried before a jury, and a verdict and judgment entered in favor of the plaintiff for $2,050. Before the jury was impaneled and sworn, a motion was made to dismiss the case upon the ground that the declaration did not state a cause of action. The reason given by counsel for this contention was that it did not appear by the declaration that the claim for damages for the injuries had been presented to and passed upon by the village council, as provided by Act No. 3, Pub. Acts 1895. Section 7, c. 5, of that act provides: "The council shall audit and allow all accounts chargeable against the village. *** It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the village for personal injuries or otherwise that it has never been presented, certified to or verified as aforesaid, to the council for allowance. ***" It is therefore insisted that under these provisions of the act the plaintiff could not maintain an action against the village until she had first presented her claim to the council for allowance, and that those facts must be set out in the declaration. This act was approved February 19, 1895, and took immediate effect. The injuries complained of were received July 12, 1894, so that before the act was passed the right of action had accrued. By section 7, c. 7, it is provided that: "No village subject to the provisions of this act shall be liable in damages sustained by any person in such village either to his person or property, or by reason of any obstruction, ice, snow or other incumbrance upon such street, sidewalk, cross-walk or public highway situated in such village, unless such person shall serve or cause to be served within sixty days after such injury shall have occurred a notice in writing upon the clerk or deputy clerk of such village, which notice shall set forth substantially the time when and place where said injury took place, the manner in which it occurred and the extent of such injury so far as has become known, and that the person receiving such injury intends to hold such village liable for such damages as may have been sustained by him. ***" It is evident from these and other provisions that it was not the intent of the legislature that the act should be regarded as retroactive. If the act is to be so treated, the plaintiff could not sustain this action in any event, for the injury occurred more than 60 days prior to the time the act was approved and took effect. These provisions already referred to must be read and construed in connection with other provisions of the act. The act is entitled "An act to provide for the incorporation of villages within the state of Michigan, and defining their powers and duties." Section 7, c. 14, provides that: "All villages heretofore incorporated under any general or special law of this state are hereby reincorporated under and made subject to the provisions of this act, such reincorporation to take effect on the 25th day of February, A. D. 1895; and all general or special laws by virtue of which such villages have been incorporated are hereby repealed from and after the said 25th day of February, A. D. 1895." By the provisions of this section the act under which the village was incorporated was repealed, and a new corporation formed; and, but for the saving clause contained in the succeeding section, the contention of counsel for defendant would have great force. Section 8 provides: "All villages reincorporated under and made subject to the provisions of this act as provided in the preceding section shall succeed to and be vested with all the property, real and personal, moneys, rights, credits and effects and all records, files, books and papers belonging to such villages as formerly incorporated; and no rights or liabilities either in favor of or against such former corporation existing at the time of its reincorporation under or subject to the provisions of this act and no suit or prosecution of any kind shall in any manner be affected by such change, but the same shall stand or progress as if no such change had been made, and all debts and liabilities of the former corporation shall be deemed to be the debts and liabilities of the new corporation. *** Provided, that when a different remedy is given in this act which can be made applicable to any rights existing at the time of the incorporation of the village under or subject to this act the same shall be deemed cumulative to the remedies before provided, and may be used accordingly." The cause of action having accrued in the present case prior to the time this act took effect, and more than 60 days having elapsed between the time of the injury and the taking effect of the act, the plaintiff was not in fault in not serving the notice required by this act. We think it clearly the intent of the legislature that causes of action arising prior to the taking effect of the act of 1895 may be prosecuted under the old law. It is...