Pardey v. Town of Mechanicsville

• Decision Date: 08 October 1900
• Parties: MARY J. PARDEY v. THE TOWN OF MECHANICSVILLE, Appellant
• Court: Iowa Supreme Court

83 N.W. 828

112 Iowa 68

MARY J. PARDEY v. THE TOWN OF MECHANICSVILLE, Appellant

Supreme Court of Iowa, Des Moines

October 8, 1900

Appeal from Cedar District Court.--HON. WILLIAM G. THOMPSON, Judge.

ACTION to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in not keeping one of its sidewalks in repair. The defendant answered, admitting its corporate capacity, and that it constructed said walk and denying every other allegation in the petition. Verdict and judgment were rendered for the plaintiff for $ 1,500. Both parties appeal. The defendant having first presented its appeal in this court, it is designated as the appellant.

Affirmed.

W. H Smith and Jamison & Smyth for appellant.

C. W Kepler and T. B. Hanley for appellee.

GIVEN J. GRANGER, C. J., not sitting.

OPINION

GIVEN, J.

I.

We first consider the plaintiff's appeal, which rests upon the following facts: May 8, 1897, the plaintiff filed her amended and substituted petition, setting forth her cause of action as having accrued on or about June 18, 1894; that within 90 days thereafter she served notice thereof on defendant's mayor, specifying the place and circumstances of the injury, and on the twenty-first day of August, 1894, filed a petition setting forth said cause of action, and asking to recover thereon, and that the defendant appeared and answered said petition, and the case proceeded to trial; that at the conclusion of the testimony for the plaintiff the defendant moved for a verdict, whereupon the plaintiff, for the following reasons, without negligence on her part, dismissed her said suit without prejudice. The reasons alleged are that the principal witness to the condition of the sidewalk, whom she had subpoenaed, and who was in attendance, was induced by persons acting under instructions of some of defendant's officers to drink intoxicating liquors to such excess as to be wholly unfit and incompetent to testify coherently when called, by reason of which plaintiff was deprived of her most valuable testimony; that several other witnesses by whom she expected to prove the condition of the walk were so influenced by defendant's officers and agents that she deemed it unsafe and unwise to place them on the witness stand while under that influence. Believing that it would be an advantage to have further time to investigate, and that said witness would be in better condition to testify, and the others got from under said influence, later on, she dismissed her action, and on the seventeenth day of January, 1895, brought this suit for the same cause against the same party, as a continuance of the first suit. The notice set out as served on the mayor is the original notice in the first case. The petition and answer in that case are also set out as exhibits to this petition, and show the same cause of action and issues as in this case. On May 4, 1897, the defendant moved to strike the whole and certain parts of this amended and substituted petition, which was overruled; and, according to appellee's abstract, which is not denied, no exception was taken to the ruling. On November 16, 1897, the defendant demurred to said amended and substituted petition on the following grounds: "(1) That all the matters and things pleaded in said petition, taken together, do not show that plaintiff is entitled to prosecute this suit, for the reason that no notice was served as required by law on the defendant before the commencement of this suit. (2) The facts pleaded do not show that this suit is a continuation of the former one, nor do they show that said action was dismissed without negligence of the plaintiff." The court overruled said demurrer as to the first and sustained it as to the second ground,--the defendant excepting to the first ruling, and the plaintiff to the last; and it is from this last ruling that the plaintiff appeals.

II. We inquire, is this a continuation of the first action? Section 2537 of the Code, of 1873, under which this proceeding was had, provides as follows: "If, after the commencement of an action, the plaintiff for any cause, except negligence in its prosecution, fails therein and a new one is brought within six months thereafter, the second shall for the purposes herein contemplated, be held a continuation of the first." Under section 2749 of the Code of 1873 a continuance might be allowed for any cause which satisfied the court that substantial justice would thereby be more nearly obtained. It is a common...