120 Iowa 559 | Iowa | 1903
It appears from the petition that the injury complained of was received by plaintiff on the 17th of November, 1900, and that notice of the commencement of a suit to recover therefor was served on the defendant on the 13th day of February, 1901; no written notice specifying the time and place and circumstances of the injury having been served upon the defendant within sixty days, as provided for in Code, section 3447, subdivision 1. An action was therefore commenced within three months from the time of the injury, as required by the
Plaintiff, in his second petition, alleged, as facts showing want of negligence in dismissing the first action, that near th¿ close of defendant’s testimony in that action defendant offered evidence tending to prove negligence on the part of plaintiff, in that plaintiff, who attempted
.. We think-the showing of diligence is not-sufficient. ■ If the desired witnesses could have been discovered and produced within a reasonable time, and with but slight'delay in the trial, of the cause, no doubt.the trial court would, on application, have granted time to get them.’ If plaintiff could not have secured these witnesses in .time, he should have asked for a continuance. Diligence required that the plaintiff should have endeavored in one of these two
It seems tó us that this disposes of the whole case, and ■the action of the trial court in sustaining defendant’s demurrer and rendering judgment against the plaintiff is ■AFFIRMED.