McCartney v. City of Wash.

• Decision Date: 15 June 1904
• Parties: MCCARTNEY v. CITY OF WASHINGTON.
• Court: Iowa Supreme Court

124 Iowa 382

100 N.W. 80

MCCARTNEY

v.CITY OF WASHINGTON.

Supreme Court of Iowa.

June 15, 1904.

Appeal from District Court, Washington County; W. G. Clements, Judge.

Judgment against defendant for damages. It appeals. Affirmed.W. H. Butterfield and Stockman & Hamilton, for appellant.

H. M. Eicher and S. W. Brookhart, for appellee.

LADD, J.

In the evening of July 1, 1900, the plaintiff, in passing along one of the streets of defendant city, tripped on a plank in the sidewalk, and was seriously and permanently injured. An action for such an injury must be brought “within three months, unless written notice specifying the time, place and circumstances of the injury shall have been served upon the county or municipal corporation to be charged within sixty days of the happening of the injury,” and, when so served, within two years. Section 3447, Code. Notices such as here contemplated were delivered to the mayor and city solicitor of defendant, each of whom indorsed an acknowledgment of service thereon September 10, 1900. As these notices were directed to the city, they were not open to the exception sustained in Claflin v. Iowa City, 12 Iowa, 284. But it seems to be thought that, though service may be made on the mayor, he has no power to acknowledge or waive such service. It will be observed that the manner of service is not pointed out. At the common law a municipality was served with process by notifying the mayor or other head officer, “as being the most visible part of the corporation.” People v. Cairo, 50 Ill. 154;Cloud v. Pierce City, 86 Mo. 357. Section 3531 of the Code provides that “in an action against a municipal corporation service may be made on the mayor or clerk.” One of the methods of service prescribed by statute is “by taking an acknowledgment of the service endorsed thereon, [notice] dated and signed by the defendant.” Section 3518 of the Code. The service upon the mayor, though on account of his connection with the corporation, is nevertheless a personal act. It is a notice to the individual of the proceeding or claim against the body corporate which he represents, and his acceptance of service is nothing less than the declaration in writing that he received such notice. Any one sui juris, at least, upon whom service may be executed, may acknowledge that he has been served. Talladega Ins. Co. v. Woodward, 44 Ala. 287. See Conklin v. City of Keokuk, 73 Iowa, 343, 35 N. W. 444; also City of North Lawrence v. Hoystradt, 6 Kan. 170, where the court held that the city was held by the voluntary appearance of the mayor without notice. The service was sufficient.

2. The plaintiff first alleged that the original construction of the walk was defective in a substituted petition filed January 31, 1902. To this the defendant demurred on the ground that it was not included in the notice served on the city. While the circumstances of the injury are to be stated in the notice, the statute does not require the causes which produced the injury to be enumerated. The notice specified the condition of the walk, and, though it undertook to attribute this to the negligence of the city, this was not essential to its sufficiency. The plaintiff was at liberty to assert the particular grounds of negligence at any time within two years from the accident, provided these related to the same injury.

3. The evidence on the part of defendant tended to show that the usual and ordinary method of building walks in Washington prior to 1900 was of two-inch plank five feet in length, nailed to white pine stringers three inches by four inches,...