Scieszinski v. City of Wilton, 61180

• Decision Date: 18 October 1978
• Docket Number: No. 61180,61180
• Citation: 270 N.W.2d 450
• Parties: David Leo SCIESZINSKI, Appellant, v. CITY OF WILTON and Dwayne Rogers, Appellees.
• Court: Iowa Supreme Court

Page 450

270 N.W.2d 450

David Leo SCIESZINSKI, Appellant, v. CITY OF WILTON and Dwayne Rogers, Appellees.

No. 61180.

Supreme Court of Iowa.

Oct. 18, 1978.

David Leo Scieszinski, appellant, pro se.

Rosenberger, Petersen, Conway & Petersen, Muscatine, for appellees.

Considered by UHLENHOPP, P. J., and McCORMICK, ALLBEE, McGIVERIN and LARSON, JJ.

UHLENHOPP, Justice.

We must decide here whether the filing of a petition tolls the statute of limitations when the plaintiff seeks and obtains delay in the service of the original notice.

On September 9, 1976, defendant Dwayne Rogers, a peace officer employed by defendant City of Wilton, Iowa, arrested plaintiff David Leo Scieszinski, charged him with driving while intoxicated, and held him in custody for eight hours. Mr. Scieszinski contemplated action for wrongful imprisonment against Officer Rogers and the City of Wilton. He did not however give a 60-day notice under § 613A.5 of the 1975 Code. That section provides in pertinent part:

Every person who claims damages from any municipality or any officer, employee or agent of a municipality . . . shall commence an action therefor within six months, unless said person shall cause to be presented to the governing body of the municipality within sixty days . . . a written notice. . . . No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two years after such notice. . . .

On March 8, 1977, just shy of six months from the time of the incident, Mr. Scieszinski filed a petition with the clerk of district court seeking damages from the officer and the city for wrongful imprisonment. He also filed a motion together with an ex parte court order requiring the clerk to seal the petition, motion, order, and original notice. The clerk sealed everything except the original notice, which she apparently did not receive at that time.

Rule 48 of the Rules of Civil Procedure states:

A civil action is commenced by filing a petition with the court.

The relevant portions of rule 49(a) and (b) state:

(a) Written directions for the service of the original notice and copy of petition shall be delivered to the clerk With the petition. There shall also be delivered to the clerk With the petition the original notice to be served and sufficient copies of both. . . .

(b) Upon the filing of the petition the clerk shall Forthwith deliver for service the original notice and copies, copies of the petition, and the directions for service to the sheriff, to a person specially appointed to serve it, or other appropriate person. . . . (Italics added.)

Rule 55 states:

For the purpose of determining whether an action has been commenced within the time allowed by statutes for limitation of actions, whether the limitation inheres in the statutes creating the remedy or not, the filing of a petition shall be deemed a commencement of the action.

In May 1977, Mr. Scieszinski was tried and acquitted on the charge of driving while intoxicated.

On June 1, 1977, the district court vacated its previous order under which the petition, motion, and order in the present case were sealed.

On June 3, 1977, the original notice in the present case was delivered to the sheriff and copies were delivered by him to the officer and the city. On June 17, 1977, the original notice bearing returns of service was filed with the district court clerk.

Within the time allowed, the officer and city filed their answer. In paragraph 14 they averred by way of affirmative defense:

14. Plaintiff's method of commencing this action and serving notice is contrary to the policies of Section 613A.5 of the Code of Iowa (1975) and his action should be barred because of his prejudicial delay in serving Defendant with original notice.

Various other filings followed but we need consider only the motion to adjudicate law points filed by the officer and the city. This motion set forth the facts we have recited, which are apparent on the face of the pleadings and file, and asked the court to adjudicate that the action is barred as not having been properly commenced within six months. The trial court held a hearing and thereafter sustained the motion. Mr. Scieszinski appealed. See rule 105, R.C.P.

I. Mr. Scieszinski first argues that the answer filed does not raise the limitations question, but we think his reading of the answer is too narrow. The answer, the motion, and the contents of the file clearly present the limitations question. We have no doubt that all participants knew exactly what the issue was. Since notice is the prime purpose of pleadings, and averments of pleadings are to be "simple, concise, and direct," rule 69(b), R.C.P., we hold that the officer and city raised the limitations question.

II. The problem therefore is whether a party may intentionally bury an action until a later date and then escape the bar of an intervening limitations statute on the ground that the petition itself was technically "filed" before the limitations period expired. We think not. We agree with the trial court that this would frustrate the basic purpose of limitations statutes.

Previously an action was commenced for limitations purposes by service of the original notice ...