Pardey v. Inc. Town Of Mechanicsville

• Decision Date: 09 February 1897
• Citation: 101 Iowa 266,70 N.W. 189
• Parties: PARDEY v. INCORPORATED TOWN OF MECHANICSVILLE.
• Court: Iowa Supreme Court

101 Iowa 266

70 N.W. 189

PARDEY

v.INCORPORATED TOWN OF MECHANICSVILLE.

Supreme Court of Iowa.

Feb. 9, 1897.

Appeal from district court, Cedar county; W. P. Wolfe, Judge.

Action for personal injuries caused by a defective sidewalk. Judgment for plaintiff, and the defendant appealed. Reversed.Preston, Wheeler & Moffit, for appellant.

Charles W. Kepler and T. B. Hanley, for appellee.

GRANGER, J.

1. The injury complained of occurred June 18, 1894. This action was commenced January 12, 1895. The petition contains no averment of the service of a notice, as required by section 633 of McClain's Code. It is there provided that no action shall be brought in cases of this character after six months from the time of the injury, unless written notice, specifying the place and circumstances of the injury, shall have been served on the municipal corporation within 90 days after the injury. Within six months a suit was commenced, issue taken, and before judgment it was dismissed without prejudice, on motion of the plaintiff, at the November term, 1894. On the trial of this case, plaintiff, against objections, was permitted to put in evidence the original notice and petition in the other case, to show the notice required by the section cited. Defendant asked the court to instruct the jury to return a verdict for it, for the reason that no cause of action was presented in the petition, reliance being had on the failure to plead the service of the notice. The question was again presented by a motion in arrest of judgment. It is thought by appellee that this suit, inasmuch as it was commenced within six months after the dismissal of the first suit, is a continuation of that suit, under the provisions of Code, § 2537, as follows: “If, after the commencement of an action, the plaintiff fail therein for any cause except negligence in its prosecution, and a new suit be brought within six months thereafter, the second suit shall, for the purposes herein contemplated, be deemed a continuation of the first.” If it be conceded that the section limiting actions of this kind without the notice comes within the provisions of the section quoted, which we do not decide, we do not see how it aids appellee. To make the section available, it must appear that the failure of the other suit was from some cause except negligence in its prosecution. A query by appellee in argument indicates that she thinks the other party must show the fact of negligence as the cause of the failure. It would not do to permit such a rule to obtain, for there is no presumption as to the cause of the failure to prosecute. The law does not presume negligence, nor does it, in such a case, presume against it, except that, in so far as it devolves on a party the burden of showing either the fact of negligence or the want of it, a presumption obtains against such party until it is overcome by proof. Appellee says she may have dismissed her action for a thousand reasons, and not one of them would impute negligence to her. This is likely true, and, for many reasons, it might have been dismissed, and the facts, when known, would show negligence. She is presumed to know the cause of the dismissal, and the defendant is not presumed to know it. Before this suit can be held to be a continuation of the other, which is not the general rule where one suit follows another for the same cause of action, the fact, to make it so, must appear. Logically and legally, the party asking the benefit of such a fact should show it, and especially so where she is presumed to possess the knowledge and means for so doing. This question has not been ruled in this state, but the practice has been to test the question by the averments of the petition. See Clark v. Stevens, 55 Iowa, 361, 7 N. W. 591;District Tp. of Spencer v. District Tp. of...