Kelley v. City of Minneapolis

• Decision Date: 21 June 1899
• Citation: 79 N.W. 653,77 Minn. 76
• Parties: KELLEY v. CITY OF MINNEAPOLIS.
• Court: Minnesota Supreme Court

77 Minn. 76

79 N.W. 653

KELLEY

v.CITY OF MINNEAPOLIS.

Supreme Court of Minnesota.

June 21, 1899.

Appeal from municipal court of Minneapolis; W. A. Kerr, Judge.

Action by Rozann Kelley against the city of Minneapolis. From an order dismissing the action, plaintiff appeals. Reversed.

Syllabus by the Court

1. The notice of injury required to be given to the mayor or city clerk, under the charter provisions (Sp. Laws 1881, c. 76, subc. 8, § 20) of the city of Minneapolis, before an action can be maintained on account of such injury, can properly be given and served upon the assistant city clerk.

2. And the like notice and claim to compensation required to be given and presented to the council, under the provisions of Laws 1897, c. 248, § 1, may also be given and delivered to such assistant clerk; he being one of the officers having the custody of the records and files of such council.

3. Notice is properly given, and the claim is properly presented, under either of these laws, by delivering to the proper official a copy or copies of the original written notice and claim to compensation; said notice and claim being duly addressed to the officials designated in such laws, and for whose information they are intended. F. D. Larrabee, A. R. Holman, and Geo. E. La Clair, for appellant.

Frank Healy and L. A. Dunn, for respondent.

COLLINS, J.

It is assumed by both parties to this action that it was necessary for plaintiff to comply with the requirements of the city charter (Sp. Laws 1881, c. 76, subc. 8, § 20) as to service of notice of the injury upon the mayor of the city or the city clerk, and also to comply with the provisions of Laws 1897, c. 248, § 1, as to giving a like notice and the presentation of her claim to compensation to the city council, or governing body, in writing. Acting upon the assumption, the questions for determination are two in number. At the trial, counsel for plaintiff produced a written notice, addressed to the city, to the city council, to the mayor, and to the city clerk, of the injury complained of, and also plaintiff's claim to compensation, which notice and claim were signed by plaintiff's counsel in her behalf, and which were concededly in due form, and then offered to show that on October 17, 1898, within the 30 days, there was delivered to the assistant city clerk, at the office of the clerk, during his absence from the city, a copy thereof for the clerk himself, and also that at the same time there was delivered to the assistant clerk, and for the city council, another copy of this notice and claim, with a request that the same be presented to the council at their first meeting; that the council was not then in session; that the first session thereafter was on the 28th of October, 1898, which was more than 30 days after the injuries were received; and that at such session the copy so delivered for the council was presented and read by the city clerk as part of the proceedings. The trial court held the offer to be insufficient to show compliance with either of the laws before mentioned, and dismissed the action.

1. The first question grows out of the fact that the copies were served upon the assistant city clerk, instead of the clerk himself. The position of defendant's counsel is that, in order to comply with the charter provision, service must be made upon one of the two officers therein named (that is, on the mayor or the clerk), and that service cannot lawfully be made upon a deputy or an assistant of the latter, and decisions in support of this position are cited. One of these (Town of Fairfield v. King, 41 Vt. 611) is nearly in point; and it was there held that an assistant town clerk was not a proper person upon...