Davidson v. City of Muskegon

• Decision Date: 05 January 1897
• Citation: 111 Mich. 454,69 N.W. 670
• Court: Michigan Supreme Court
• Parties: DAVIDSON v. CITY OF MUSKEGON.

69 N.W. 670

111 Mich. 454

DAVIDSON v. CITY OF MUSKEGON.

Supreme Court of Michigan

January 5, 1897

Error to circuit court, Muskegon county; Fred J. Russell, Judge.

Action by Ida Davidson against the city of Muskegon for personal injuries. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Edward D. Haines (Joseph H. Clark, of counsel), for appellant.

H. L Delano, for appellee.

MOORE J.

The plaintiff sued the defendant to recover for injuries received by her on a defective sidewalk. It is her claim that the injuries were received August 21, 1892; that she was then an infant, and attained her majority February 1, 1894; that March 15, 1894, she presented to the common council of Muskegon a claim in writing, duly verified, for damages; and that she did the same again July 3, 1894. There is no question raised upon the sufficiency of the pleadings. The case was tried by a jury. The plaintiff introduced evidence tending to prove all the allegations necessary to make a case. The defendant introduced in evidence section 20, tit. 6, of the charter of the city of Muskegon, as follows: "The common council shall audit and allow all accounts chargeable against the city, but no account or claim or contract shall be received for audit or allowance unless it shall be accompanied with affidavit of the person rendering it to the effect that he fairly believes that the services or property therein charged for have been actually performed or delivered to the city, the sums charged therefor are reasonable and just, and to the best of his knowledge and belief, no set-off exists or payments have been made on account thereof, except such as are indorsed or referred to in such account or claim, and every such account shall exhibit in detail all the items making up the amount claimed and the true date of each. It shall be sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the city of any description whatever, that it has never been presented as aforesaid to the council for allowance, or that the claim was presented without the affidavit aforesaid and rejected for that reason, or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it. And all claims for damage against the city growing out of the negligence or default of said city or of any officer or employ� thereof shall be presented to the common council of said city in the manner above provided within six months after such claim shall arise, and any default thereof shall thereafter be forever barred. And in any action, in any court, on any such claim the claimant shall be required to show that such claim has been duly presented in the manner in this section specified to the common council of said city for audit, investigation and allowance,"-the same being received and read in evidence; and defendant rested. The court thereupon instructed the jury to bring in verdict for defendant.

The only question in the case is whether the charter provision is a defense to the claim of the plaintiff. In the absence of the charter provision the action was brought in time. It is the contention of the defendant that, as the plaintiff did not file her claim before the common council within six months from the date of her injury, she did not file it within six months after the claim arose, and that she cannot maintain her action. In support of this view, counsel cite Springer v. City of Detroit, 102 Mich. 300, 60 N.W. 688; Morgan v. City of Des Moines, 54 F. 456. It was the opinion of the...