Kenyon v. City of Cedar Rapids

• Decision Date: 11 May 1904
• Parties: MARY KENYON, Appellant, v. THE CITY OF CEDAR RAPIDS
• Court: Iowa Supreme Court

99 N.W. 692

124 Iowa 195

MARY KENYON, Appellant, v. THE CITY OF CEDAR RAPIDS

Supreme Court of Iowa, Des Moines

May 11, 1904

Appeal from Linn District Court.--HON. H. M. REMLEY, Judge.

ACTION to recover damages for personal injuries sustained by reason of a fall on a defective sidewalk. A demurrer to the petition on the ground that the action was brought within 30 days after giving notice to the city (Code, section 1050) was sustained, and judgment was rendered for the defendant, from which the plaintiff appeals.

Affirmed.

W. E Steele and Grimm, Trewin & Moffit, for appellant.

John N Hughes, for appellee.

OPINION

MCCLAIN, J.

The question presented involves the construction of two sections of a chapter in the Code relating to cities under special charters, which reads as follows:

Section 1050. No suit shall be brought against any such city for an unliquidated claim or demand unless within three months from the time the same became due or cause of action accrued thereon, nor unless a written, verified statement of the general nature, cause and amount of same is filed with the clerk or recorder thirty days before the commencement of such suit.

Section 1051. In all cases of personal injury or damage to property resulting from defective streets or sidewalks, or from any cause originating in the neglect or failure of any municipal corporation or its officers to perform their duties, no suit shall be brought against any such city after three months from the time of the injury or damages, and not then unless a written verified statement of the amount, nature and cause of such injury or damage, and the time when and the place where such injury occurred, and the particular defect or negligence of the city or its officers which it is claimed caused or contributed to the injury or damage, shall be presented to the council or filed with the clerk within thirty days after said alleged injury or damages was sustained.

Both of these sections limit the commencement of the action to three months from the time when the claim becomes due. But in the first it is required that notice be given thirty days before the commencement of suit, while the second provides that notice of the claim be given within thirty days after the claim accrued. No doubt the purpose of the first of these sections was to secure to the corporation time for investigating and allowing the claim before the expense of a suit should be imposed upon it, while the object of the second was to enable the corporation to investigate the facts attending the alleged injury while they are still fresh. The first is somewhat analogous to the provision regarding claims against a county which has long been in force (see Code, section 3528), although, so far as we can discover, there is no similar provision applicable to cities not under special charters. The second is analogous to a provision now incorporated in the chapter relating to limitation of actions (Code, section 3447, paragraph 1) which applies to counties...