Bennett v. Bevard

Weight, O. J. — We are called upon to determine but one question, and that is, whether plaintiff’s right of action upon either, or all of the notes, was barred by the statute of limitations. The Code provides that the delivery of the original notice to the sheriff of the proper county, with intent that it be served immediately, (which intent shall be presumed, unless the contrary appears), or the actual service of that notice, by another person, is a commencement of the action. Section 1663. Whether this action was commenced at the time the first original notice was delivered to the sheriff', or when the service -was finally made on the second one, we deem it immaterial to determine, for in either event, we think the plaintiff’s action was not barred. [89] Under- the law in force at the time these notes were given, and when plaintiff’s right of action accrued, the action was required to be commenced within six years. The Code provides that actions founded on written contracts, may be brought within ten years, and not after-wards — section 1659. And then, by sections 1671, 1672, and 1673, it is provided, 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 regulations: the times hereafter allowed for commencing actions, in such cases, shall not be less than one-half the periods of limitation herein respectively prescribed, except, that when the periods of limitation heretofore fixed by statute, is not enlarged by the provisions of section 1659, the time allowed for the commencement of a suit shall in no case be greater than that fixed by the law heretofore in force, as applied to those cases.” We have assumed that the law in force at the time plaintiff’s right of action accrued, required him to sue within six years thereafter. Of this there can be no doubt as to the notes dated in 1850; for the Code, which repealed, the law of 1843, was not passed until February 5th, 1851. It did not take effect, however, until July 1st, 1851. And the word “ hereafter,” in section 1672, has reference to that date, and not to the time of the passage of the Code; section 35. Charless & Blow v. Lamberson, 1 Iowa, 435. 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, plaintiff’s cause of action had accrued upon all the notes, but it was not barred as to either. If, therefore, the question stood alone upon the provisions of sections 1659 and 1671, the plaintiff might have brought his action at any time within ten years from the time his right of action accrued. And 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 1843, that law containing no rule for the government of [90] actions, the causes 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 sections 1672 and 1673. In the first place, we remark, that section 1673 may be left entirely out of consideration, for that applies to cases where the period of limitation heretofore fixed, is not enlarged by the Code, and, as in this instance, the period of limitation is enlarged, we look for our rule alone to section 1672. What effect has this exception upon the general rule, as laid down in sections 1659 and 1671 ? In other words, what is meant by this section ? The answer to these inquiries is, perhaps, best given in the very words of the section. We propose, however, as far as possible, to give additional clearness to its meaning. And first, it is provided that the times hereafter allowed for commencing actions, 11 in such, cases,” &c. We ask, in what cases? Manifestly those actions which had already accrued, but were not yet 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 in said chapter provided. And thus we see, in the second place, that the language is not that the times hereafter allowed for commencing actions in such cases, shall not be greater than one-half the periods of limitation herein respectively,, prescribed, but shall not be less. It would certainly seem, however, that if the legislature intended, in such cases, to limit the bringing of the suit to one-half the time, or, in this case, to five years, the words “ not greater,” or “ not more,” or something equivalent, would have been used, instead of the language employed. Again, we suppose that the object of this section was to prevent the application of the general rule, contained in section 1671, to causes of action which had accrued, and were not barred, without giving a reasonable time after the taking effect of the new law, within which to bring the action. And the reason and policy of such a rule we can best illustrate, by stating a case which might arise. Under the statute of 1843, every [91] action, on the case for slanderous words, was to be commenced within one year after the words were spoken. Under the Code, such action must be brought within two years. But if the cause of action 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. If, however, at the expiration of this one year, or on the first of July, 1852, the two years had not expired, then the right to commence the action still continued until the expiration of the full term of two years, from the time the cause of action accrued. And so in the case before us. Upon two of the notes, under the law of 1843, the plaintiff’s action would have 'been barred on the second, or, perhaps, the fifth day of February, 1856. The Code provides, however, that it shall not be barred until in February, 1860. If, however, the notes had been dated in June, 1845, then they would have been barred in June, 1855, but for section 1672, which, in such a case, gives half the ten years provided for in section 1659, to-wit: five years from the first of July, 1851, or until July, 1856. Ve think this section, (1672), was intended to provide for all causes of action accruing before the taking effect of the Code, where the period of limitation fixed before that time, was not enlarged by the provisions of section 1659. In doing so, it was necessary to establish a general rule, or one that would be applicable to all cases coming within its provisions. This rule is, that after the Code takes effect, a party shall have half the time herein, (in the Code), for commencing his action. He may have inore, but he shall not be cut off with less. If, however, upon the expiration of this time, (that is, half the time), the whole period allowed by the first section of chapter 99, counting from the time the cause of action accrued, has not expired, then the party may sue at any time before that period expires. Any other construction, it seems to us, does violence to the language used, and contravenes the object and purpose of the law. Judgment reversed.