Muscatine weekly journal. [volume] (Muscatine, Iowa) 185?-1890, 1858-07-23

| W. 10
lon. 1915. The Niagara had not been heart
from since that date
STATUTE OF LIMITATION.
Supreme Court of Iowa-June Term
Joseph Bennett, plaintiff and appellant, sst
! William Bevard, defendant, and appellee. -
Appeal from Muscaline County Distric
Court. a
| This action was brought on three promis-
sorry notes, two of them dated Feb. Cd, 1850
the third April 24th, 1851, and all due one
day after their respective dates. The orgi-
nal notice was delivered to the Sheriff on
the 24th Of Nov, 1856, and was returned
not served the defendant not being found)
on the 18th of May, 1857 On the 18th OF
Sept, 1857, defendant was served, but when
the notice was delivered to the person serv-
ing the same does not appear. The other
facts material to full understanding of the
questions decided, sufficiently appears from
the opinion of the Court. Plaintiff appeals.
HRNEY O'CoNNoR for App't.
RiCuMAN j. BIO. for Appellee.
OPINION OF WRIGHT, CHIEF JUSTICE.
We are called upon to determine but one
question, and that is, whether plaintiffs
right of action upon either or all of the notes
was bound by the statute of limitation.
The code provides that the delivery of the
original notice to the Sheriff Of the proper
county, with intent that it be served imme-
diately (Which intent shall be presumed un.
less the contrary appears,) or the actual SER
vice of that notice by another person, is q
commencement of the action, ss, 1663.-
Whether this action was commenced at the
time the first or original notice was deliv-
cred to the Sheriff, or when the service was
finally made, or the second one, we deem 1t
immaterial to determine, for in either case
we think the plaintiffs action was not bar
red.
Under the law in force at the time these
notes were given, and when plaintiffs right
Of action accrued, the action was required to
be commenced within six years. The code
provides that actions founded on written
contract may be brought within ten years
and not afterwards, ss, 1869. And then by
IS, 1871, 1872, and 1878, it is provided that,
'the provisions of this chapter are intended
to apply to causes of action which have al
ready accrued and are not yet barred, subject
to the following regulations the times here
after allowed for commencing actions, in
such cases shall not be less than ONE halt
the periods of limitation herein respectively
prescribed, except that, when the periods Of
limitation heretofore fixed by the statute is
not enlarged by the provisions of So. 1865,
the time allowed for the commencement of
a suit shall in no case be greater than tn at
fixed by law heretofore in force as applied
in the. cases."
We have assumed that the law in force at
the time plaintiffs right of action accrued,
required him to sue within six years there
after. Of this there can be no doubt as
to the notes dated in 1850 for the code,
which repealed the law of IS43, was not
passed until Fob. 5th, 1851. 1t did not take
effect, however, until July 1st, 1851. And
the word thereafter" in section 1872, has
reference to that date, and not to the time OF
the passage of the code. [sS. IS, Charles Il
Blow, VS.. Farnbern, l Iowa, 1851 And
thus we see that the last note, though dated
after the passage of the code, but before its
taking effect, must be governed by the same
rule.
At the time the code took effect, then the
plaintiffs cause of action had accrued upon
all the notes, but it was barred as to either.
IT. therefore, the question stood alone upon
the provisions Of IS. 1913, 1871, the plain
tiff might have brought his action at any
time within ten years from the time his
right of action accrued. At this and the
subsequent provisions we may remark were
made as we suppose to obviate the difficult
question Which had arisen under the law of
l843, that law containing no rule for the
Unv n nf ootinpo tho Dfx xyh;ol
had accrued prior to its taking effect.
And now the question is, what effect is to
be given to the exceptions contained in
ss. 1872 and 1878. In the first place we re-
mark that ss. 1878, may be left entirely out
IF consideration, for that applies to cases
where the period of limitation heretofore
tired is not enlarged by the code, and az in
this instance the period of limitation is en-
larged, we look for our rule alone to IS. 1872
What effect has this exception to the general
rule as laid down in 50. 1859 and l6717
In other words, what is meant by this Sec
ton? The answer to these inquiries is per-
haps better given in the very VOL ds of the
section. We propose, however, as far as
possible, to give additional clearness to its
And first it is provided that the times
hereafter allowed for commencing actions
''in such cases, &C" We ask in what cases
to those actions which had al
ready occurred, but were not vet barred,
referred to in the preceding section. The
time allowed in such cases then is not to be |
less than one-half the periods of Limitation |
ia said chapter provided. And thus we see |
in the second place, that the times hereafter |
allowed for commencing actions, in such |
cases shall not be greater than one-ba,f the |
periods of limitations herein respectively |
but shall not be less. It would |
seem, however, that if the Legisla-
ture intended in such cases to limit the
bringing of the suit to one half of the time.
Ior in this case to five years. the words
mot greater" or "not more" or something
equivalent, would have been used, instead of
she language employed.
Again, we suppose that the object of this
section was to prev mt the application of the
general rule, Contained in SO. l67l,) to
causes of action which have accrued, and
we're not barred without giving reasonable
lime after the taking effect of the new law,
within which to bring the action: And the
reason and policy of such rule we can best
Illustrate by stating a case which might
lrise. Under the statute of 1843, every ac-
ion on the case for slanderous words, was
% be commenced within one year after the
words were spoken. Under the code such
lotions mnst be brought within too years. f
But if the cause of action arose before the f.
aking effect of the code, end was not baf@
ed, the plaintiff might have at least half the
line fixed in the code, that is one year, ksr
bringing his action. If, however, at the exs}l
,iration Of this one year, or on thu first of
July, 1852. the two years had not expired,
hen the right to Commences the action still |,