144 Iowa 260 | Iowa | 1909
It is conceded that the ruling of the court in sustaining defendant’s demurrer on the ground that the action founded on injury to the person on account of a defective street was not brought within three months, no written notice specifying the time, place and circumstances of the injury having been served upon the defendant within sixty days from the happening of the injury (Code, section 3447, paragraph 1), was correct, unless the alleged fact of plaintiff’s minority entitled him, under Code, section 3453, to a time after the termination of hi's disability within which to serve such notice. The allegations of the petition in this respect were that plaintiff’s injury was received on March 28, 1908, and that he did not attain his majority until September 30, 1908. The action was instituted on November 21, 1908.
The provision just cited with reference to notice in such cases was first enacted in 1888, as chapter 25, Acts 22d General Assembly. As amended in 1896 by chapter 63, 26th General Assembly, it was in force as a separate statutory provision relating to municipal corporations, when in 1897 it was by the Legislature incorporated into Code, section 3447, relating in general to the limitation of actions as the first paragraph of that section. The statute of limitations relating to injuries to the person, and requiring actions therefor to be brought within two years, was in force when the act of the 22d General Assembly was passed (see Code 1873, section 2529, paragraph 1), and that provision is retained as paragraph 3, Code, section 3447. The act of the Twenty-Second General Assembly was not therefore as originally adopted a part of the statute of limitations, but was a specific provision with reference to actions brought against municipal corporations to recover for injuries to the person, and its purpose was to give such corporation such notice of the claim as would
The contention of appellant is, however, that when' the. provision of the Twenty-Second General Assembly, as amended by the Twenty-Sixth General Assembly, was incorporated by the Legislature into the section relating to general limitation of actions, the exception of Code, section 3453, became applicable thereto, that the limitation of three months within which action must be brought, if no notice was served within sixty days, became subject to the statutory exception as to minors, and that plaintiff .had three months within which to bring his action after he attained his majority, although no notice of his claim had been served within sixty days after the injury was received. Notwithstanding the incorporation into Code, section 3447, of the provision previously made in the statute
The judgment is therefore affirmed.