# Hawley v. Griffin > Supreme Court of Iowa · October 30, 1903 · 121 Iowa 667 URL: https://www.frixlaw.com/law-library/cases/7110634 ## Case - **Full name:** Eliza B. Hawley v. M. E. Griffin, Appellees Eliza B. Hawley v. Michael Fell, Appellees Eliza B. Hawley v. Frank M. Barnard, Appellees John M. Masterman v. Eliza B. Hawley, for New Trial, Appellants M. E. Griffin v. Eliza B. Hawley, for New Trial, Appellants Frank M. Barnard v. Eliza B. Hawley, for New Trial - **Court:** Supreme Court of Iowa - **Decided:** October 30, 1903 - **Citations:** 121 Iowa 667 - **Precedential status:** Published - **Opinion:** Concurrence by Bishop - **Judges:** Bishop, Deeher, McClain, Weaver, Weavhr - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7110634 ## Opinion text Bishop, J. (concurring). — lam satisfied with the result as announced in the foregoing opinion of Weaver J. I share, however, in the views entertained by the 'majority of the court upon the question presented in the third sub-division of the opinion, and, as the position of the majority is not clearly set forth therein, it seems to me ■appropriate that a brief statement defining the same should accompany the opinion. It will be observed that the propositions involved are •what shall be considered the commencement ot' an equitable action, within the meaning of section 893, of the Code of 1873, and what shall be deemed the commencement of proceedings, within the meaning of section 3157 of the same Code. If section 893 and section 892, preceding it, are to be taken as statutes of limitation, simply, then, unquestionably, section 2532, Code 1873, has application, and the equitable action provided for must be held toi be commenced when the original notice is placed in the ■hands of the sheriff with Intent that the same be served immediately. On the other hand, if not statutes of lim-tation, simply, then section 2532 has no application, and ■the action must be regarded as commenced only when the *687 notice has been, actually served upon the defendant as provided in section 2599, Code 1873. I't seems very clear ■that the section last referred to was intended to define what should constitute the commencement of an action, in the-broad and general sense, and that it has application to all cases where the question of the actual pendency of an action arises. It occurs in the Code in connection with the general subject of the commencement of actions, and, without question, would govern in all cases unless exception is provided for by some further statutory enactment. Section 2532 clearly furnishes such an exception. It is found in connection with the provisions of the statute relating to limitation of actions, and, under a familiar rule of construction, must be confined in its operation thereto unless it appears by necessary implication that it was intended to have a broader scope or more extended application. That it may have application to limitation statutes other than those found in the general chapter relating to that subject, and that it may be invoked in those cases where a limitation upon the right to commence, an action is provided for by contract, may readily be conceded, but no sufficient reason appears for permitting a further encroachment upon the general rule as' provided for in section 2599. The reason for the rule of section 2532 is apparent upon a.moment’s reflection, and that such reason in no sense entered into the enactment of section 2599 is equally apparent. Statutes of limitation, it will be borne in mind, relate exclusively to the remedies afforded by the law, and the effect thereof when interposed, is simply to create a barrier to a f urther prosecution of the suit. The right of action, considered by itself, is not involved in respect of any of its essential elements. It follows that the interposition of a plea of the statute of limitations gives rise to no implication to the effect that the cause of action alleged is not otherwise meritorious, or that it has been paid, or in some other manner satisfied. *688 The sole thought underlying all statutes of limitation is-that public policy will be subserved by forbidding the-prosecution of stale demands. Such statutes' are accordingly properly denominated “statutes of repose.” Where, however, the purpiose of a statute is to grant a legal right that otherwise would have no existence, and such grant-of right is, by the terms of the statute, conditioned upon its acceptance or the exercise of the right within a stated, period, then an altogether different principle is involved. Such a statute is not bottomed upon a like reason, nor has-it any of the characteristics of a statute of limitation,, inasmuch as in such cases the time limit inheres in and forms a part of the right itself. In other words the essential property right granted by the statute is made to-depend for its existence upon demand being made therefor within a certain prescribed period. And it can make-no difference whether the demand is to be made upon some particular person or officer, or by way of an action brought in a court of competent jurisdiction. In either event the-demand must be made, or the action commenced, in order that the property right may be said to have become fully matured. Under the provisions of the statutes in question, a right-of redemption from tax sale is conferred upon minors and lunatics, conditioned upon the exercise of such right within a prescribed period of time after the disability of minority or lunacy, as the case may be, has been removed. Here the limitation of time is an inherent jmrt óf fhe right created, and the statute was in no sense designed as a-statute of limitation, going to the remedy only, or having for its sole object the fixing of a period within which an action might be brought. The right granted by the statute-is to redeem within a certain period of time, and the power and its exercise within the time limited are each essential parts of the right conferred, so that there is no right of action independent of the limitation. Proska v. *689 McCormick, 56 Iowa, 318 , was an action upon a penal bond which contained a provision that it should be deemed fulfilled unless action be brought thereon within a certain fixed period; and we held that, as applied thereto, action was not commenced until the notice thereof was in fact served. In that case we said: “It is necessary at the outset to distinguish carefully the difference between pure statutes of limitation and other special limitations which are similar, but have widely different qualities. Where time is of the essence of the right created, and the limitation is an inherent part of the statute or agreement under which the right in question arises, so that there is no right of action independent of the limitation, a number of leading principles which apply to pure statutes of limitation, are inapplicable.” In the case of a pure statute of limitation, as we have seen, there’ is no connection between the right upon which an action is predicated, and the statute which forbids the prosecution of such action solely on the ground of the lapse of time. The right of action may be conferred by statute, or it may rest upon some principle of the common law. The limitation denying the aid of the courts for the protection or enforcement of such right of action is a creation of the statute, pure and simple. The case of Proska v. McCormick is clearly an authority for the proposition that as between an essential right of action, and a limitation upon the right, to invoke the aid of the courts to enforce the same, a clear distinction exists, and different principles are applicable to each proposition. And there certainly is no justification, in reason, for saying that, in a case where -the right of action itself has for one of its constituent elements a. condition that it shall be asserted or exercised within a. given period of time, the right can be separated, and one' part governed by one set of principles, and the other part-by a set of principles applicable to an ■ entirely different- *690 subject. See cases in support of our position cited by Weaver, J. It may be conceded that the case of Hintrager v. Nightingale (C. C.) 36 Fed. Rep. 847, is not in all respects in harmony with our holding in Smith v. Cal lanan, 103 Iowa, 224 . But our position is in no sense disturbed thereby. The Oallanan Case involved an application of section 902, Code 1873, which provided that “no action for the recovery of real property sold for the nonpayment of taxes shall lie, unless the same shall be brought within five years after the treasurer’s deed is executed and recorded.” Such statute relates to the subject of remedy, and to that alone. It is in its every essential feature a statute of limitation, and is to be construed in the light of those principles which govern in the case of pure statutes of limitation. The case is in no sense, therefore, an authority upon the question we have before us. The reasoning upon which we base our conclusion in respect to sections 892 and 893 applies equally to section 3157. As opposed to this, Weaver, J., cites and relies upon the case of Snyder v. Ives, 42 Iowa, 157 . That was an action in equity to correct the mistake of the clerk, whereby he had left out of the decree in an action for the foreclosure of a mortgage the description of a portion of the real estate covered by the mortgage. It was not in any sense a proceeding under chapter 1, title 19, of the Code. Had it been, section 3156 alone would have been applicable. That section provides that proceedings to correct a mistake or omission of the clerk shall be by motion served on the adverse party or his attorney within one year. The action being in equity, the plaintiff, upon a proper showing, was entitled to relief as in equity, and this without reference to the time limit as fixed in section 3156. Such was the distinct holding in Partridge v. Harrow, 27 Iowa, 96 . It is true that the opinion in Snyder v. Ives contains dicta upon which an argument might be based leading to the conclusion that sections 3156, 3157, Code *691 1873, and the corresponding sections in the present Code, were intended as statutes of limitation. In-this we do not agree. In the sections .referred to, the time limit is an inherent part of the right granted, and in connection with proceedings thereunder the provisions of section 2532, Code 1873, and the corresponding section in the present Code, have no application. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7110634. Public record. Not legal advice.