Hudson v. Blanfus

Colk, J. 1. Pleading and practice: time of filing petition. -The original notice in this action was placed in the hands of the sheriff for service on the twentieth day November, 1866, and was personally served upon the defendants on the same day. qq10 Notice stated “ that there will be on file in the office of the clerk of the District Court of Bremer county, Iowa, on or before the 20th day of December, A. D. 1866, a petition of the plaintiff, etc., etc.” The petition was not filed until the 27th day of December, 1866. The term of court for Bremer county, next succeeding the service of notice, began and was held on the 21st day of January, 1867. On the second day of the term, as the record states, “ this cause, coming on for hearing is discontinued by order of the court, to which ruling the plaintiff excepted.” On the next day the plaintiff filed a motion to redocket the case, because, first, there was no motion filed by the defendant to dismiss the action; second, there was no prejudice shown to the defendant by reason of the petition not being filed at the time stated in the notice; third, the order to discontinue was contrary to statute. The court refused this motion and the plaintiff again excepted. The'correctness of these rulings is tire only question for us to decide. By the Code of 1851, it was enacted (§ 1716): “ If the petition is not filed by the time thus fixed, or if not filed ten days before the first day of the next term, the action will be deemed discontinued, unless good cause be shown for the failure.” Under this section, it has been several times held by this court that if the petition was [325] filed by the time fixed in the notice or ten days before the first day of the next term, it was in either ease, sufficient. McCaffrey v. Guesford, 1 Iowa, 80; Chever v. Lane, 3 Id., 296 ; Anderson v. Kerr, 10 Id., 233 ; Sweet v. Porter, 12 Id., 387. If the law was the same now as in the Code of 1851, the ruling of the District Court, being in conflict with the cases above cited, would be erroneous. The question then is, whether the Code of 1860 is the same in substance in this particular, or different from the Code of 1851. The Code of 1860, like that of 1851, provides that the original notice must inform the defendant that on or before a day named therein, the petition will be filed. The Code of 1860 then provides, in lieu of the section quoted supra (Rev., § 2813): “ If the petition is not filed by the date thus fixed, and ten days before the term, the action will be deemed discontinued.” The language of this section is different from that of the corresponding section, quoted above from the Code of 1851. This difference of language fairly construed conveys a substantially different meaning. And since the commissioners who prepared the Code of 1860, as well as the legislature which adopted it, had before them the judicial construction of the language of the Code of 1851, as contained in the first three cases above cited, and, in view of such construction selected different language, it is very legitimate to conclude that they intended a change of the rule or law in such cases, and for that reason employed the different words to express it. See Code of 1851, section 1715, and Butcher v. Brand (6 Iowa, 235), construing it; and compare with section 2812, of Code of 1860, and the Bes Momes Bramah of the State Bank v. Van (12 Iowa, 523), and Decatur County v. Clements (18 Id., 536), construing it. The Code of 1851 required the petition to be filed by the time fixed in the notice, or ten days before the next [326] term (either would be sufficient), and made the discontinuance, or failure to do so, to depend on the want of good cause therefor, while the Code of 1860 requires the petition to be filed on the day fixed in the notice and ten days before the term (both are required), and makes the discontinuance on failure so to do unconditional, and not subject to the showing of good cause. The difference of meaning, conveyed by the two sections, is clear, certain and substantial; it is not merely verbal. Under the Code of 1860 (Rev.,- § 2813) it is necessary to file the petition by the time fixed in the notice and ten days before the term, and on failure so to do, the action will be deemed discontinued. This is the plain meaning, and to enforce it according to the letter can work no material prejudice to any party. The plaintiff has the right to fix the time himself for the filing of his petition, and he may well be required to comply with his own terms. If he fails to •comply with his notice and his action is discontinued, he may again begin his action without prejudice from the discontinuance of the first. If the time specified by the statute of limitations has run so long as to bar the second action, and not the first; yet, if the failure to file the peition in proper time was for good cause and not from negligence, the statute would not bar the second, since, by Revision, section 2719, it would “be deemed a continuance of the first.” The language of the section is reasonably plain and certain, and no prejudice can happen to a plaintiff by requiring him to comply with it. There was, therefore, no error in the ruling of the District Court in discontinuing the action, or in refusing the motion to redocket the cause. Affirmed.