41 Neb. 575 | Neb. | 1894
This is a proceeding in error by the city of Lincoln to reverse a judgment recovered by Dorinda C. Finkle against the city for damages to the property of the defendant in error caused by a change of grade in a' street. But one assignment of error need be noticed. The plaintiff in the court below alleged that the grade had been changed in 1884, and that in 1888 or 1889 the street had been worked to the new grade, and that on or about September 15,1891, she presented her claim for damages to the city. The proof was in accordance with the last allegation. The city requested the court to instruct the jury that the action could not be maintained unless the claim for damages was presented within three months from the time the damages accrued. This instruction was refused. Compiled Statutes, chapter 13a, section 36, provide that “ to maintain an action against said city for any unliquidated claim it shall be necessary that the party file in the office of the city clerk, within three months from the time such right of action accrued, a statement giving full name and the time, place, nature, circumstance, and cause of the injury or damage complained of.” If this provision be valid and mandatory, the action could not be maintained under the pleadings and proof of this case, as it appears both by the petition and by the evidence that the statement was not filed until at least two years after the commission of the acts complained of. The validity and construction of this statute were questions involved in some doubt at the time this case was tried in the district court. Since then this court has had occasion to investigate the questions presented and has held that the statute referred to is a reasonable exercise of the legislative
Reversed and remanded.