Coleman v. The City of Fargo

• Decision Date: 11 October 1898
• Court: North Dakota Supreme Court

76 N.W. 1051

8 N.D. 69

REBECCA G. COLEMAN v. THE CITY OF FARGO

Supreme Court of North Dakota

October 11, 1898

Appeal from District Court, Cass County; Pollock, J.

Action by Rebecca G. Coleman against the City of Fargo to recover for personal injuries. From a judgment for plaintiff, and an order denying its motion for a new trial, defendant appeals.

Affirmed.

Assignment of error overruled, and order and judgment affirmed.

Charles J. Mahnken and John E. Greene, for appellant.

The plaintiff as a condition precedent to action against the city should have presented his claim to the Board of Audit. § § 2170, 2171, 2172, Rev. Codes. The law not providing a method of service upon the board of audit the service must be personal. Potwine Appeal, 31 Conn. 381; Wade on Notice, 1312 1313, 1334 and 1335; McDermott v. Board, 25 Barb 646; Rathburn v. Acker, 18 Barb. 393; Nichols v Boston, 98 Mass. 39; City v. Saulcey, 38 P. 1098; Burford v. Mayor, 49 N.Y.S. 969. The statute is mandatory and must be strictly construed. Suth. Stat. Cons. § 454; Underhill v. Town, 46 Vt. 767; Nichols v. Minneapolis, 30 Minn. 547. The fact that the claim was in fact considered in a session of the council, does not operate as a waiver of service. The officers cannot waive the mandate of a statute which effects the rights of the public. Underhill v. Washington, 40 Vt. 767; Veazie v. Rockland, 68 Me. 513; Gay v. Cambridge, 128 Mass. 387; Starling v. Bedford, 62 N.W. 674; Borst v. Sharon, 48 N.Y.S. 996.

Leonard A. Rose and Fred B. Morrill (Edward Engerud of counsel), for respondent.

OPINION

WALLIN, J.

This is an action to recover damages for a personal injury resulting from the alleged negligence of the defendant in maintaining a sidewalk. The plaintiff recovered below, and the defendant now asks for a reversal of the judgment in this Court upon the ground that incompetent evidence was allowed to go to the jury. A single error is assigned in this Court, and the question presented thereby involves the construction to be placed upon article 7 of chapter 28 of the Political Code. Sections 2171, 7172, Rev. Codes, are as follows: "The mayor and common council of all cities organized under the provisions of this chapter are constituted boards of audit for said cities respectively." "All claims against cities for damages or injury alleged to have arisen from the defective, unsafe, dangerous or obstructed condition of any street, crosswalk, sidewalk, culvert or bridge of any city, or from the negligence of the city authorities in respect to any such street, crosswalk, sidewalk, culvert or bridge, shall, within sixty days after the happening of such injury or damage, be presented to the mayor and common council of such city by a writing signed by the claimant and properly verified, describing the time, place, cause and extent of the damage or injury." The remaining sections of article 7 provide, in effect, that no action can be maintained on this class of claims against cities unless it is made to appear that the same have first been presented to the mayor and council in proper form, within the time limited, and that the mayor and council have not allowed and audited the same within the period stated in the statute. On August 31, 1896, the city council being then assembled in regular session, the mayor being present and presiding at the session, the city auditor produced the claim, and presented the same to the mayor and council by reading the same to them during said session. The claim was then turned over to the city attorney, after the council, by a vote, had referred the matter to the street committee of that body. The paper containing the claim was never out of the possession of the auditor until it was delivered to the city attorney. It is conceded that the claim was presented within the time limited by the statute for the presentation of such claims, and was not at any time audited and allowed; and it is also conceded that the claim was in proper form, and was sufficiently verified when read to the mayor and council by the auditor.

Upon these facts the appellant's counsel in their brief state their contention as follows: "We contend that the record in this case does not disclose that any claim has ever been presented to be considered by the board of audit of the City of Fargo in this case. Until such presentation has been made such board of audit has no jurisdiction to pass upon the merits of the claim; and, until such jurisdiction has been conferred, no action or want of action on the part of the board of audit can warrant the prosecution of an...