Thoeni v. City of Dubuque

• Decision Date: 31 January 1902
• Citation: 115 Iowa 482,88 N.W. 967
• Parties: THOENI v. CITY OF DUBUQUE.
• Court: Iowa Supreme Court

115 Iowa 482

88 N.W. 967

THOENI

v.CITY OF DUBUQUE.

Supreme Court of Iowa.

Jan. 31, 1902.

Appeal from district court, Dubuque county; M. C. Matthews, Judge.

Action at law begun July 13, 1898, to recover damages alleged to have been occasioned to plaintiff's property by change in grade of street made in August, 1896. Demurrer to petition having been overruled, defendant appeals. Affirmed.Duffy & McGuire, for appellant.

Jess & Kitzinger, for appellee.

WEAVER, J.

The grounds of the demurrer to petition are stated as follows: (1) That plaintiff's cause of action is based on an unliquidated claim which accrued in the year 1896, and this action, being brought thereon more than three months after the Code of 1897 went into effect, is barred by the statute limiting such actions as provided in such Code; (2) that there is no showing that any written, verified statement of the general nature, cause, and amount of plaintiff's claim was filed with the recorder of the city 30 days before the commencement of the suit.

Prior to the Code of 1897, actions upon claims of this nature could be brought at any time within two years after the cause thereof accrued. In adopting the Code the legislature materially modified this rule in favor of cities acting under special charters, and it is there provided: “Sec. 1050. No suit shall be brought against any such city for any unliquidated claim or demand unless within three months from the time the same became due or cause of action accrued thereon, nor unless a written verified statement of the general nature, cause and amount of same is filed with the clerk or recorder thirty days before the commencement of such suit.” Does this change in the statute of limitations affect plaintiff's right of action, which had accrued before such change was enacted? It will be conceded that statutes of limitation, pertaining, as they do, to the remedy, may be extended or abbreviated by act of the legislature, and that, generally speaking, such changes may be made retroactive and applicable to existing rights. It is well settled, however, that, with but few exceptions, it is not competent for the legislature to cut off all remedy, and that the right to sue within the existing statute of limitations is property, which cannot be thus summarily destroyed. Gilbert v. Ackerman, 159 N. Y. 118, 53 N. E. 753, 45 L. R. A. 118;Kennedy v. City of Des Moines, 84 Iowa, 187, 50 N. W. 880. Nor will a statute of this kind be given retroactive...