Plum v. City of Fond Du Lac

• Decision Date: 02 March 1881
• Citation: 51 Wis. 393,8 N.W. 283
• Parties: PLUM AND ANOTHER v. CITY OF FOND DU LAC.
• Court: Wisconsin Supreme Court

51 Wis. 393

8 N.W. 283

PLUM AND ANOTHER

v.CITY OF FOND DU LAC.

Supreme Court of Wisconsin.

Filed March 2, 1881.

Appeal from circuit court, Columbia county.

Henry J. Gerpheide, for respondents.

W. D. Conklin and T. F. Duffy, for appellant.

ORTON, J.

This is an action to recover damages for personal injury occasioned by a defective sidewalk. The injury happened October 20, 1878, and the action was commenced about the twenty-eighth day of December following. Section 1339, Rev. St., provides that no such action shall be maintained * * * unless, within 90 days after the happening of the event causing such damage, notice in writing, signed by the party, his agent or attorney, shall be given to * * * or mayor or city clerk of the city against which damages are claimed, stating the place where such damage occurred, and describing generally the insufficiency or want of repair which occasioned it, and that satisfaction therefor is claimed of such * * * city.” The Revised Statutes, containing this new provision in relation to suits against cities for such cause, were approved June 7, and took effect November 1, 1878, so that, in respect to this injury, there were 80 days of the 90 mentioned in the statute after the injury in which such notice could have been given. There was no proof that such notice was given in this case, and this was one of the grounds of a motion for a nonsuit after the plaintiffs had concluded their evidence. This motion was overruled, and the defendant excepted, and the learned circuit judge finally instructed the jury that no such notice was required to be given, holding that this provision of the statute was not applicable to cases of such injury happening before the statute took effect.

The question being the most important of any presented in the record, and as we shall decide it probably fatal to the action itself, we shall consider no other. The language of the statute, requiring such notice “ within 90 days after the happening of the event,” is peculiar. It does not require notice to be given for any length of time, but that it shall be given within a certain time. The statute took effect within and a long time before the expiration of the 90 days after this event happened, and therefore such notice could have been given, and the statute literally and fully complied with in this respect. The plaintiffs had ample time to give the notice which was the condition precedent to maintaining their suit, and could have given it without inconvenience or injury. It must be held, therefore, that the statute required them to give such notice. Such a statute cannot properly be called retroactive or retrospective in any sense, much less in the sense of being void as affecting the rights of the party. In the latter sense, the new statute must materially affect the subject-matter of the action, as some vested right therein, and partake of the mischief of ex post facto laws, properly so called. When a statute relates only to the remedies to be administered in future actions, and regulates and imposes reasonable conditions upon such actions, and can be easily and fully complied with before bringing such actions, it is not in any sense retroactive. A statute relating to the remedy alone may be in a certain sense retroactive, and yet not be objectionable for that reason; but this statute relates to the future conduct of the party and not to the past, and has no retrospective character whatever. It may be said that this statute might not have taken effect until the 90 days had already expired in which such notice could be given, and therefore must be inoperative, at least as to some future actions for past injuries, and that that is a strong reason why the statute was not intended to apply to cases of past injury. It may be that such cases would be excepted from the operation of the statute by the terms of ...