Meisenheimer v. Kellogg

WiNslow, J. But one ground of demurrer is insisted upon in this court, and that is the general ground that the complaint does not state facts sufficient to constitute a cause of action. Upon this question the decisions of this court in Jones v. Burtis, 88 Wis. 478, and Crowty v. Stewart, 95 Wis. 490, are quite conclusive in support of the complaint. All the allegations which were held sufficient in these cases to set forth a good cause of action for malpractice are contained in the present complaint, and it is not necessary to elaborate the question here. But it is argued that the notice, of the injury which is set forth in the complaint is insufficient, in that it does not set forth the place where the damage occurred (subd. 5, sec. 4222, Stats. 1898), and that the giving of a sufficient notice is a condition precedent to the cause of action, and hence that no legal cause of action is alleged. The radical difficulty with this argument is that the notice required by the statute above mentioned is not a condition precedent to the cause of action, but is merely a statute of limitation. The distinction [33] was clearly pointed out in the recent case of Relyea v. Tomahawk P. & P. Co. 102 Wis. 301. It was there stated, in substance, that a notice required to be given before the commencement of a purely statutory action (such as an action against a city for injuries resulting from a defective highway) is necessarily a condition precedent to the cause of action, because, the entire right of action being given by statute, it only comes into existence when the required notice has been given, but that a notice required to be given by statute prior to the commencement of an action to enforce a common-law right (such as the case now before us) is necessarily a statute in the nature of a statute of limitations, because the right exists without the aid of any statute. dSTo argument in support of this conclusion would seem to be required. The right of action exists independently of statute. The requirement of notice within a certain time simply sets a new time limit within which a certain step necessary to enforce the right must be exercised. It is. not a condition which must exist before any right comes into being. : This distinction was evidently overlooked in the cases of Weed & G. Mfg. Co. v. Whitcomb, 101 Wis. 226, and Ryan v. C. & N. W. R. Co. 101 Wis. 506, where the notice required to be given by sec. 18165, Stats. 1898, in case of the negligent killing of stock by a railroad company, was said to be a condition precedent to the maintenance of the action. In neither of these cases, however, was the question directly raised, nor was the attention of the court directed to it, but it was, in effect, conceded on both sides that the notice was a condition precedent; and the holding in those cases must now be considered as expressly overruled upon this point, as it was -impliedly overruled by the conclusion reached in the Rélyea Case. Being a statute of limitation, the objection that the notice was not given must be taken either by answer or demurrer, [34] or it is waived. Stats. 1898, seo. 4206. Whether the objection can be taken by demurrer, under the present statute regulating the grounds of demurrer (sec. 2649), may admit of some doubt. The seventh subdivision of that section, which is the only one relating to the subject, provides for a demurrer on the ground “that the action was not commenced within the time limited by law.” As will be readily seen, that is not precisely the objection sought to be raised here. But we are not called upon to decide this question now. If the statute has provided no demurrer for this cause, still the objection may be readily taken by answer, as was always the method at common law prior to the adoption of the Code. As no such objection is now raised either by answer or demurrer, the question of the sufficiency of the notice is not before us. By th& Cowrt.— Order affirmed.