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the only method for supplying the same: Gammon v. Knudson 46-455. Prior to the enactment of this section, held, that an action might be maintained on a domestic judgment while in ful force and upon which an execution might issue, in the absence of any legislative restriction: Thompson v. Count of Lee, 22-206; Simpson v. Cochran 23-81.

"There is no reason why a party should be harassed by suit after suit when one judgment can be made just as effective as a hundred : Code Com'rs' Rep., p. 74.

The restriction here imposed is not applicable to actions in the U. S. circuit court: Phillips v. O'Brien Co.,2 Dillon (U. S. C. C.), 518.

cannot be an

ings.

SEC 2522 Judgment obtained in an action by ordinary pro- Judgments ceedings, shall not be annulled or modified by any order in an nulled by equit action by equitable proceedings, except for a defense which has able proceedariser or beer discovered since the judgment was rendered. But R. 22621. such judgment does not prevent the recovery of any claim, though such clair might have been used by way of counter claim it the action or which the judgment was recovered.

This does not prevent the issuance Where a defendant permits judgof an injunction against the collec- ment to go against him by default on tor of a judgment which is being a legal demand, he may in a subseenforced contrary to the agreement of quent action set up and rely upon parties: Baker r Redd, 44-179. equitable matters which would have Judgment in garnishment proceed-constituted an available defense in ings although rendered for an amount in excess of garnishee's liability to judgment debtor, cannot be modified in an action in equity: B. d M. E. R Co. v. Hall, 37–620.

the first action; and semble, that the
same would be true where the claim
available as a defense is a legal one:
Fairfield v. McNany, 37-75.

SEC. 2523. No action to obtain a discovery shall be brought, For discovery when brouglit. except that where any person or corporation is liable, either R. 4127. jointly or severally with others by the same contract, an action may be brought against any parties who are liable, to obtain discovery of the names and residences of the others who are liable. In such action, the plaintiff shall state in his petition, in effect, that he has used due diligence, without success, to obtain the information asked to be discovered, and that he does not believe the parties to the contract who are known to him have property sufficient to satisfy his claim. The petition shall be verified, and the cost of such action shall be paid by the plaintiff, unless the discovery be resisted.

SEC. 2524. Successive actions may be maintained upon the Successive acsame contract or transaction, whenever, after the former action, a tions. new cause of action has arisen therefrom.

Section referred to in Richmond v. | D. & S. C. R. Co., 33–422.

R. 4128.

SEC. 2525. All causes of actions shall survive, and may be Actions surbrought, notwithstanding the death of the person entitled or liable vive.

to the same.

R. 3467, 4110,
C. '51, 2502.
9 G. A. ch. 174,

Held, that an action for libel would If a counter claim is properly main- 4. survive: Carson v. McFadden, 10-tainable in favor of two defendants, 91; so also an action for injury to the the death of one of them will work no person: McKinlay v. McGregor, abatement thereof: Moorehead v. 10-111; so also an action for seduc- Hyde, 38-382. tion brought under § 2555: Shafer . Grimes, 23-550.

But an action for divorce is abated by the death of one of the parties, and with it all claim for alimony: Barney Birney, 14-189; O'Hagan . O'Hagan, 4-509.

A claim based upon a personal tort may be assigned: Weir v. City of Davenport, 11-49; Gray v. Me Allis er, 50-497.

As to survival of actions pending upon appeal, see notes to § 2211.

crime. Dam

⚫ages for

SEC. 2526. The right of civil remedy is not merged in a public Civil remedy offense, but may, in all cases, be enforced independently of, and not merged in in addition to, the punishment of the latter. When a wrongful act act produces death, the damages shall be disposed of as personal property belonging to the estate of the deceased, except that if the deceased leaves a husband, wife, child, or parent, it shall not be liable for the payment of debts.

producing

death.
R. 4111.

C'51, 1698.

Proceedings:

limitation of

action.

R. 4111.

C. 51, 2 1699.

? 4.

[The word "enforced" in the second line is printed but not all copies of the printed code.]

"forced" in some,

A corporation is liable in a civil | estate only are to be recovered, and action for wrongful acts of its ser- not those resulting to the next of kin. vants, done in its employment and Whether exemplary damages could producing death. Its liability, how-be recovered, quære: Sherman v. ever, would not probably be held to West'n Stage Co., 24-515. exempt the immediate agent from liability: Donaldson v. M. & M. R. Co., 18-280.

Where an employe of a railroad company received injuries through the wrongful act of a co-employe resulting in death, the company was held to be the "perpetrator " within the language of Rev. § 4111, and civilly liable, (see § 1307 and note): Philo v. Ill. Cent. R Co., 33-47.

In an action by the administrator of a minor to recover damages to the estate resulting from injuries causing his death, the recovery is limited to those damages accruing after the minor would have attained his majority and up to the limit of his probable expectancy of life. The damages accruing before majority are not to the estate but to the father or other person entitled to the minor's services: Walters v. C. R. I. & P. Co., 36-458.

Under this section damages to the SEC. 2527. The actions contemplated in the two preceding sections may be brought, or the court, on motion, may allow the action to be continued by or against the legal representatives or successors in interest of the deceased. Such action shall be

9 G. A. ch. 174, deemed a continuing one, and to have accrued to such representative or successor at the same time it did to the deceased if he had survived. If such is continued against the legal representative of the defendant, a notice shall be served on him as provided for service of original notices.

Construction:

law not appli-
cable.
R. 2622.

No notice to defendant is necessary when the cause is continued in favor of the legal representative of plaintiff, and the substitution of such representative is no cause of continuance on behalf of defendant: Masterson v. Brown, 5'-442.

Under Code of '51, held that where one of the joint makers of a note

died during the pendency of a suit thereon, the action could not be continued, jointly, against the administrator of the deceased and the surviving joint obligors: Pecker v. Cannon, 11-20; Marsh v. Goodrel. 11-474. As to survival of actions pending on appeal, see § 3211.

SEC. 2528. The rule of the common law that statutes in derorule of common gation thereof are to be strictly construed has no application to this code. Its provisions, and all proceedings under it, shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice.

C. '51, 2503.

Similar provision in Code of '51, | burg, 11-59; Kramer v. Rebman, 9– applied: Strother v. Steamboat Ham-114.

CHAPTER 2.

IN GENERAL: The statute of lim-
itations begins to run from the time
the cause of action accrues. After
the statute once begins to run, no sub-
sequent disability will suspend it un-
less the statute itself provides there-
for. Before a cause of action will
accrue or the statute begin to run,
there must exist a cause of action and
a person authorized to prosecute it.
So the statute will not run against a
cause of action accruing to the estate
of a decedent until there is a personal
representative in whose name it may
be prosecuted: Sherman v. Western
Stuge Co., 24-515, 553.

Statutes of limitation pertain to
the remedy and not to the essence of
the contract, and an act extending
the time for bringing suit on a cause
of action is valid: Edwards v. Me-
Caddon, 20-520; and such statutes
are not unconstitutional as impairing
the obligation of existing contracts:
Parsons v. Carey, 28-431; Harrin-
court v. Merritt, 29-71;

Statutes of limitation do not affect

the validity of the cause of action;

therefore the fact that a judgment is

still valid and may be enforced in the
state where rendered does not prevent
its being barred by the provisions of
our law, notwithstanding the provision
of U. S. Const.. art. 4, § 1, that full
faith, etc., shall be given to the judi-
cial proceedings of another state:
Meek v. Meek, 45-294.

Our statute of limitations applies
equally to actions at law and suits in
equity: Relf v. Eberly, 23-467; Wil-
liams v. Allison, 33-278; Phares v.
Walters, 6–106.

The statute of limitations does not
run against the state: Kellogg v.
Decatur Co., 38-524; and though the
action be brought in the name of the
county, yet if it be for the benefit of
the state, as for the recovery of a part
of the school fund, it will not be
barred by the statute: The Coun' of
Des Moines v. Harker, 34-84. But the
statute will run against a county:
Brown v. Painter, 44-368; even
though the action is technically in the
name of the state, if for the benefit
of the county: The State v. Hender-

son, 40-242.

The statute also runs against a city:

City of Burlington v. B. & M. R. R. | ted, discussed: Koons v. C. & N.W. Co., 41-184; City of Pella v. Scholte, R. Co., 23-493. 24-283.

A debt which is simply barred by the statute cannot be regarded as paid or extinguished: Austin v. Wilson, 46-362.

In case of fraudulent concealment of a cause of action by the party against whom it exists, preventing the opposite party from acquiring knowledge thereof, the statute will not commence to run until the cause of action was, or might have been, discovered, and this, irrespective of the provisions of § 2530: Dist. Tp. of Boomer v. French, 40-601; Findley v. Stewart, 46-655.

The statute of limitations must be specially pleaded and will be held waived unless taken advantage of by demurrer or answer. (See §§ 2648, 2650 and 2718): Robinson v. Allen, 37-27.

The filing of an amended petition, if the cause of action remains the same, does not affect the question as to whether the action is brought in time: Cobb v. I. C. R. Co., 35-601, 626.

The statute of limitations does not apply to an action for any portion of the school fund, see § 2542.

PAR. 1. Injuries resulting in death are "injuries to the person" within the meaning of this section, and an action by the personal representative therefor is barred in two years: Sherman v. Western Stage Co., 22-556; S. C., 24-515; Nord v. B. & M. R. R. Co., 37-498; so also are actions under § 1557 for injuries from the sale of intoxicating liquors: Emmert v. Grill, 39-690.

But in case of injuries resulting in immediate death, held, by two of the Judges, that the cause of action accrued only to the personal representative, and the statute did not commence to run until his appointment (but, see § 2527 and note): Sherman v. Western Stage Co., 24-515, 553.

In case of injury to the person, the statute of limitations begins to run from the time of the injury and not from the time the extent thereof is discovered by the person injured: Gustin v. County of Jefferson, 15158.

The double damages allowed against a railroad company for killing stock (§ 1289) are not a statute penalty so as to come within this section. The action may therefore be brought within five years. What are statute penalties as here contempla

|

PAR. 3. An action against a treasurer, not on his bond, for moneys received and appropriated, is within this paragraph: Keokuk County v. Howard, 41-11; so an action against a treasurer and his sureties on his bond for failure to account for and pay over revenues in his hands, is within this clause and barred within three years. It does not fall within the provisions of ¶5: The State v. Dingee 17-232; The State v. Henderson, 40–242.

The action of mandamus against a public officer to compel the performance of an official duty cannot be maintained until there has been a refusal to perform such duty, and the statute commences to run from the time when the plaintiff has a right to demand the performance of the act, and he cannot delay or postpone it by neglecting to make such demand: Prescott v. Gonser, 34-175; Beecher v. County of Clay, 52-140.

In an action against the clerk of the court for damages resulting from his negligence in accepting an insufficient stay bond, held, that the cause of action did not accrue nor the statute begin to run until the stay expired: Steel v. Bryant, 49-116.

Under the Code of 1851, held, that the failure of a county judge to pay over money received by him in his official capacity was not the omission of an official duty within the meaning of this clause, and, therefore, that the three years limitation did not apply to an action on his b nd to recover such money: County of Poweshiek v. Ogden, 7–177.

PAR. 4. In order to constitute a written contract sufficient to bring a case within the next paragraph and prevent the bar of five years from applying, the essential facts estab:ishing the liability of defendant, should be in writing: Lamb v. Withrow, 31164.

This paragraph, and not § 3261 governs in actions for use and occupation of real estate: Tibbitts v. Morris, 42-120.

An action for relief on the ground of fraud must be brought within five years from the time of its discovery. (See § 2530.) In such cases defendant pleading the statute of limitations must show that plaintiff had knowledge of the fraud more than five years before the action was brought: Baldwin v. Tuttle, 23-66; Harlin v. Stevenson, 30–371.

The statute commences to run as against an unliquidated claim against a county from the time the account accrues and not from the time the demand required by § 2610 is made: Baker v. Johnson Co., 33-151; Kinsey r. Louisa Co., 37-438.

Upon an unwritten contract for a loan of money payable on demand, the statute commences to run from the time of the loan: Hall v. Letts, 21-596.

As to when an action against the county to recover taxes erroneously paid is barred, see Callanan v. County of Madison, 45-561, in notes to § 870.

PAR. 5: CONTRACTS. Actions to enforce specific performance of a contract to convey real estate are within this paragraph: Wright v. LeClaire, 3-221.

such a judgment as is here contem plated: Smith v. Shawhan, 37–533. FOR RECOVERY OF REAL PROPERTY: Mere possession for the time mentioned is not sufficient to enable defendant to rely on the bar of the statute. Such possession must be adverse, under color of title or claim of right: Wright v. Keithler, 7-92; Jones v. Hockman, 12-101; Clagett v. Conlee, 16–487; Larum v. Wilmer, 35-244; Davenport v. Sebring, 52364.

But, claim of right alone is sufficient. Color of title is not essential: Ibid; Colvin v. McCune, 39–502.

A tax deed, void on its face, is sufficient to give color of title: Coirin v. McCune, 39-502.

A descent cast, or a devise, gives color of title, although the ancestor or. devisee was a mere trespasser: Hamilton v. Wright, 30–480.

The adverse possession must be under claim of right with intention to claim title, and not by agreement with the true owner: McNamee v. More

In an action to recover the part of the purchase money paid, in case of breach of written contract to convey, the statute commences to run from the time of demand and refusal to convey, and not from date of pay-land, 26–96. ment of the money, such action not being for money had and received: Deming v Haney, 23-77.

MORTGAGES: The limitation of this paragraph is applicable to suits for the to eclosure of mortgages: Newman v. De Lorimer, 19-244; and also to actions to redeem: Gower v. Winchester, 33-303; Green v. Turner, 38-112.

An action to foreclose or redeem from a mortgage is barred at the same time as an action at law on the

The possession, to be adverse, must be actual, continued, visible, notorious, distinct, and hostile, and commenced under claim o color of title, but actual residence on the land is not necessary to constitute such possession. Any acts which are open and notorious, done under claim or color of tile and continued for a necessary time will justify the finding of adverse possession: Robinson v. Lake, 14-421; Booth v. Small, 25–117.

The title under which the adverse mortgage debt: Smith v. Foster, possession is held need not be valid 41-442; but a mortgage is not barred and perfect, but must be claimed in so long as the debt is unpaid and good faith; nor need the possession capable of being enforced: Clinton be shown to have been known to the Co. r. Cox, 37-570; Brown v. Rock-adverse party or his grantor: Close v. holl, 49-282. Samm, 27-503.

Adverse possession for more than ten years after the accruing of a right of action on the mortgage is a bar to an action to foreclose: Jamison v. Perry, 38-14.

A mortgagor does not hold adversely to his mortgagee, but he may convert his posse sion into an adverse possession: Ibid.

Adverse possession must be open and notorious, and if so, the person against whom it is maintained is presumed, as matter of law, to know of it: Teabout v. Daniels, 38-158.

358.

A mere continuance in possession by the grantor, after conveyance by him, will not ripen into a right to rely upon the statute of limitations: LirThe mere possession of a mortga-ermore v. City of Maquoketa, 35gee will not be held adverse to the mortgagor, even after payment of the Merely paying taxes upon wild mortgage debt, so as to give him the lands and occasionally looking at benefit of the statute. Something them and showing them to others, beyond mere possession after pay- held, not such actual, visible, notoment is necessary to make such pos-rious, adverse possession as is necessession adverse: Green v. Turner, sary to enable a party to take advant38-112, 118. age of the statute: Brown v. Pose, 48-231.

JUDGMENTS: The order of a probate court allowing a claim, is not

The adverse possession need not be

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