Webster v. City of Hastings

• Decision Date: 17 November 1898
• Docket Number: 9901
• Parties: J. R. WEBSTER, ADMINISTRATOR, v. CITY OF HASTINGS
• Court: Nebraska Supreme Court

77 N.W. 127

56 Neb. 669

J. R. WEBSTER, ADMINISTRATOR, v. CITY OF HASTINGS

No. 9901

Supreme Court of Nebraska

November 17, 1898

ERROR from the district court of Kearney county. Tried below before BEALL, J. Reversed.

REVERSED AND REMANDED.

Webster & Rose, J. L. McPheely, B. F. Smith, and Ed L. Adams, for plaintiff in error.

L. J Capps, Tibbets Bros., Morey & Ferris, contra.

RYAN C. RAGAN, C., not sitting. IRVINE, C., SULLIVAN, J dissenting.

OPINION

RYAN, C.

This cause has been several times under consideration in this court as between Jefferson H. Foxworthy and the city of Hastings. Its previous history need not at this time be considered, for the questions now presented arise, for the most part, independently of former discussions. On November 16, 1886, Jefferson H. Foxworthy filed in the district court of Adams county an amended petition, in which he alleged that the defendant, the city of Hastings, on January 21, 1886, was a city of the second class under the laws of this state; that said city, on the date above named and for some time before, had suffered one of its streets to become and remain dangerous to persons using it, by reason of accumulations thereon of ice and snow, though it was the duty of said city to cause the removal of said obstruction; that after nightfall of said day said Foxworthy, without fault on his part, slipped on said ice and snow and by falling was greatly injured; that said Foxworthy, on July 28, 1886, as soon as he was sufficiently recovered from his said injuries, filed with the city clerk of the city of Hastings his sworn statement, showing the time, place, and circumstances of his said injury and the names of the witnesses thereto as fully as known to him, and that his damages amounted to $ 20,000. Among other defenses the defendant alleged that on January 21, 1886, it was a city of the second class of more than 5,000 and less than 25,000 inhabitants; that no statement of the claim for damages alleged to have been sustained by plaintiff was filed within six months of the date of the alleged injury, as required by law, and that by reason of the failure to file such claim the district court was without jurisdiction to try the cause. On July 8, 1896, plaintiff filed an amended reply, in which, in substance, he denied that defendant, on January 21, 1886, or prior thereto, was organized under the laws of Nebraska as a city of the second class of more than 5,000 and less than 25,000 inhabitants, and averred that the defendant was a city of the second class organized under the law entitled "An act to provide for the organization, government, and powers of cities of the second class and villages," approved March 1, 1875; that defendant claims to be incorporated under what is published as, and purports to be, an act approved March 5, 1885, entitled "An act to amend the title, and sections 1, 2, 3, and 4, of an act entitled 'An act to provide for organization, government, and powers of cities of the second class having more than ten thousand inhabitants,' approved March 1, 1883" (Session Laws 1885, p. 148, ch. 14), but plaintiff avers that said act is void, for that no bill of such title was ever introduced into either house of said legislative assembly, nor was any bill of that, or yet of any, title expressing its subject or purpose ever read or voted upon or passed, or the title thereof ever agreed to, in or by either house of said legislative assembly." There were in said reply the following averments: "The act to which said act of March 5, 1885, purports to be amendatory, entitled 'An act to provide for the organization, government, and powers of cities of the second class having more than ten thousand inhabitants, approved March 1, 1883,' was and is unconstitutional and void, because its subject-matter is not expressed in its title and it conflicts with the title and provisions of an act to provide for the organization, government, and powers of cities and villages, approved March 1, 1879, which was not and is not repealed nor by it referred to or amended, and was and is yet in force, and no law existed, or now exists, requiring plaintiff to file his claim in the city clerk's office." On May 17, 1897, the defendant filed the following motion: "Comes now the defendant and moves the court that judgment be rendered in favor of defendant on the pleadings in this cause and this action be dismissed for the following reasons: (1.) Under the issues as joined the defendant is entitled to judgment. (2.) Under its pleadings a judgment in favor of plaintiff could not be sustained. (3.) Plaintiff's petition does not state facts sufficient to constitute a cause of action. (4.) The issues in this cause, as disclosed by the pleadings, have been adjudicated in favor of defendant in this action. (5.) The new matter in plaintiff's amended reply is not proper to be pleaded in a reply, nor can it aid the petition or be considered by the court." The action taken with reference to this motion is described in the following journal entry: "And now on this 18th day of May, 1897, the same being one of the days of the May, 1897, term of this court, this cause came on to be heard upon the motion of defendant for judgment on the pleadings, and after argument by counsel for both plaintiff and defendant, the court, being fully advised, sustains said motion and finds for the defendant on the pleadings." A motion for a new trial was filed by plaintiff which presented the grounds relied upon in his reply, and this motion, as the record shows, was overruled and an exception was taken to this ruling, whereupon there was a judgment dismissing plaintiff's action and taxing the costs against him. After these proceedings were had plaintiff died, and in this court the action has been revived in the name of plaintiff's administrator.

It is urged by the defendant that the averment of the filing of a notice of plaintiff's claim was essential to the statement of plaintiff's right to bring suit. On the theory of the defendant, that the statute required this step to be taken, this position may be conceded to be correct. On the other hand, if, as plaintiff alleged, there was in existence no statute requiring the filing of notice of plaintiff's claim, it was not incumbent upon plaintiff, in stating his cause of action, to allege that a claim for damages had been filed with the city clerk of defendant. Whether or not there was such a failure to comply with constitutional requirements regulating the enactment of statutes was a question presented by the reply of plaintiff, in which it was distinctly averred that the act requiring the filing of a claim was void and never had an existence, for the reason that no bill of such title was ever introduced into either house of the legislative assembly, neither was that bill nor any bill of that, or yet of any, title expressing its subject or purpose ever read or voted upon or passed, or the title thereof agreed to, in or by either house of said legislative assembly. Manifestly, if these averments were true, the statute under which the defendant insisted upon the filing of a claim with the city clerk was as ineffective as though it had never existed. If this assumption of plaintiff that there was no statute was correct, he was not required to assert and prove a negative. The defendant, by answer, first asserted the existence of this statute, plaintiff denied its existence and alleged facts to show it had never become a law, and these we shall now consider.

It is provided by section 418, Code of Civil Procedure, as follows "The proceedings of the legislature of this state, or any state of the union, or of the United States, or of any foreign government are proved by the journals of those bodies respectively, or of either branch thereof, and either by copies officially certified by the clerk of the house in which the proceedings were had or by a copy purporting to have been printed by their order." In State v. McClelland, 18 Neb. 236, 25 N.W. 77, the syllabus, which reflected the full purport of the opinion correctly, was in this language: "The certificate of the presiding officer of a branch of the legislature that a bill has duly passed the house over which he presides...