Daily Iowa State Democrat. [volume] (Davenport, Iowa) 1856-1859, 1858-07-16
STATUTE OF LIMITATION.
Supreme Court OF Iowa-June Term, ;!

Supreme Court OF I~owa-June Term, $50
Joseph Bennett, plaintiff and appellant
Us. William Bevard. defendant, and appel
lee. Appeal from Muscatine County Dis.
trict Court.
This action was broug bit on three prom
issory notes, two Of them dated Feb. I'd,
1850, the third April oath 1451, and all due
one day after their respective dates. The
original notice was delivered to the Sheriff
on the cath November, 1856, and was re-
turned not served, (the defendant not being
found on the 18th May. 1857. On the
18th September, 1857, defendant was
served, but when the notice was delivered
to the person serving the same does not ap-
near. The other facts material to a full I'M
derstanding of the questions decided, suf-
f~ciently appears from the opinion OF the
Court, Plaintiff appeals.
HENRY O'CoSsER for App't.
RICHMOND 4 Bso., for Appellee.
OPINION OF WRIGHT, CHIEF JUSTICE.
We are called apon to determine but one
question, and that Is, whether plaintiffs
right of action upon either ali 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 pro-
per county, with intent that it be served
Immediately (Which intent shall be pre-
sumed unless the contrary appears,) or the
actual service Of that notice by another per-
son. is a cOmmencem ent Of the action, IS,
1863. Whether this action was commenced
at the time the first or original notice was
delivered TO the Sheriff, or when the ser
vice was finally made, or the second one, we
deem it immaterial to determ Inc, for in
either event we think the plaintiff, action
was not barred.
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 writ
ten contract may be brought within ten
years and not afterwards. s., 1859. And
then by IS. 1871, 1872. and 1913. it is pro-
vided that, "the provisions of this chapter
are intended to apply to causes of action
which have already accrued and are not
yet barred, subject to the following regula-
tons; the times the times hereafter al
lowed for commencing actions, in such
cases, shall not be less than one-half the
periods OF limitation herein respectively
prescribed, except that, when the pc
RODS of limitation heretofore fixed by the
statute is not enlarged by the provisions of
IS. 1866, the time allowed for the com
mencement of a suit shall in no case be
greater than that fixed by the law hereto.
fore 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 elk 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 1S43, was
not passed until February 9Th 1851. 1t did
not take effect however until July Let 1851.
And the word thereafter" in section 1872,
has reference to hat date, and not to the
time of the passage Of the code. IS. IS,
Charles 4 Blow, W.. Farnbern, ! Town, 435
And thus we see that the last note, though
dated after the passage of the code. but be-
fore 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.
If therefore the question stood alone upon
the provisions of IS. 1913, 1911, the plaintiff
might have brought his action at any time
within ten years from the time his right Of
actiea accrued. At this and the subst auent
provisions we may remark We're made as
We suppose to obviate the difficult question
which had arisen under the law OF lS43,
that law containing no rule for the govern
ment of actions, the canses of which had
accrued prior to its taking effect.
And now the question is what effect is
to be given to the exceptions contained in
IS. IS. 1872 and 1873. In the first place
We remark that IS. 1878, may be left en-
tirely out of consideration, for that applies
to cases where the period of limitation
heretofore ,hred is not enlarged by the code,
and as in this instance the period of limita =
ton is enlarged, We look for our rule alone
to SIS. 1872. What effect has this exception
to the general rule as laid down in IS. 1859
and 1871? In other words, what is meant
by this section! The answer to these in
| quiries is perhaps best given in the very
words of the section. We propose, howev-
er, as far as possible, to give additional
clearness to its meaning.
And first it is provided that the times
hereafter allowed for commencing actions
Gin such cases, DC" We ask in what cases?
Manifestly to those actions which had al
ready accrued, but We're not yet barred, re-
TERED to in the preceding section. The time
allowed in such cases then is not to be less
than one-half the periods of limitation IN
said chapter provided. And thus we see in
the second place, that the language is not,
that the times hereafter allowed for ccm-
mencing actions, in such cases shall not be
greater than one half the periods of limita-
tions herein respectively prescribed, but
shall not be less. 1t would certainly seem,
however, that if the legislature inteded in
such cases to limit the bringing of the suit
to one half OF the time, Tor in this case to
five years. J the words mot greater" or "not
more" or something equivalent. would have
been used, instead Of the language en-
ployed.
Again, we suppose that the object of this
section, was to prevent the application of
the general rule, contained in SIS. l67l.)
to causes Of action which nave accrued. and
were not barred without giving a reasona-
BILE time after the taking effect of the new
law, within which to bring to bring the ac.
ton. And the reason and policy Of such a
rule We can best Illustrate by stating q case
which miget arise. Under the statute Of
lS43, every action on the case for SANDER.
GUS words, was to be commenced within
one year after the words were spoken. I'm.
der the code such actions must be brought
within tmo years. But if the cause of ac-
ton arose before the taking effect of the
code, and was not barred, the plaintiff might
have at least half the time fixed in the code.
that is one year., for bringing his action
II, however, at the expiration of this one
year. or on the first of July, 1852, the two
years had. mot expired, then the right to
commence the action still continued until
the expiration of the full term of two ears
from the cause Of action accrued. And 80
in the case before us.
Upon two Of the notes, under the law of
iS4S, the plaintiffs action would have been