This is аn appeal from an adjudication under rule 105, Rules of Civil Procedure, that plaintiff’s personal injury action against .Mason City is barred by limitations in § 613A.5, The Code. We affirm.
Plaintiff’s petition was filed May 28, 1970. It аlleged she fell on a public sidewalk in Mason City on July 21, 1969, and suffered injuries proximately caused by thе City’s negligence in maintaining the sidewalk. The petition recited that notice of the injury was mailed to the city clerk September 3, 1969. In its answer the City raised an affirmative defense claiming the action was barred by the limitations provisions of § 613A.5 because the September 3, 1969, notice failed to state the time of injury. The record is undisputed that the notice is completely devoid of any mention of time of injury.
Plaintiff moved for adjudication of the limitations law point and seрarately moved for leave to amend her notice to supply the time of injury. The motiоns were heard together. At hearing plaintiff’s counsel produced but did not offer in evidencе a letter he sent the City July 24, 1969, advising plaintiff had fallen at the place involved, pointing out the defect and asking it be remedied to protect others. Plaintiff’s counsel also attachеd his own affidavit to a brief later furnished the trial court stating the City did correct the sidewalk problem at some unknown date after the accident.
The trial court held the notice deficiеnt under § 613A.5 for failing to set forth time of injury and not subject to amendment in the lawsuit.
Plaintiff alleges the trial сourt erred in three respects: (1) finding the notice deficient; (2) excluding the letter and affidavit from the appeal record; and (3) ruling the notice couldn’t be amended in the lawsuit.
I. Sufficiency of the notice. Section 613A.5, The Code, provides in relevant part:
“Every pеrson who claims damages from any municipality * * * shall com- *318 menee an action therefor within three (3) months, unless said person shall cause to be presented to the governing body of thе municipality within sixty (60) days after the alleged * * * loss or injury a written notice stating the time, place, аnd circumstances thereof * *
The applicable time limitations are the same as were in the predecessor statute, § 614.-1(1), The Code, 1966. They are intended to provide a methоd for prompt communication of time, place and circumstances of injury to the muniсipality so investigation can be made while facts are fresh. See Heck v. City of Knoxville,
The present action was brought more than three months after the alleged injury and therefore its viability rests upоn the sufficiency of the notice furnished within sixty days after the accident. In view of the plain terms оf the statute requiring the notice to include time of injury, we are unable to say a notice whiсh completely omits that information substantially complies with the statute. Howe v. Sioux County,
II.
The documents not in the record.
The July 24, 1969, letter and subsequent affidavit were not part of the trial record and were properly еxcluded from the appeal record. Richardson v. Richardson,
Even if the letter and affidavit were part of the record, they would not cure the deficienсy in the notice. Neither purports to supply the time of injury. As previously shown, sufficiency of the nоtice is determined by whether it complies with statutory requirements rather than whether the municipality was actually disadvantaged.
III. Amending the notice. Plaintiff also seeks to save her notice by amending it as if it were a pleading in the lаwsuit. However, the notice is an operative fact in the lawsuit rather than a “pleading” subjеct to amendment. Rules 69, 88, R.C.P.
Apart from this, § 613A.5 makes time of the essence and any curative action must be taken within the sixty-day notice period. See Blackmore v. City of Council Bluffs,
Affirmed.