dissenting. I am unable to agree with the majority of the court in the judgment pronounced in this action.
The policy of insurance upon which it is sought to recover contained a provision that “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity * * * unless commenced within twelve months next after the fire.”
*114It is admitted that this action was not commenced within the time provided by the contract, but it is claimed that by reason of a former action, having been commenced for the same loss within the time and dismissed for want of prosecution without prejudice, the plaintiff had a right to maintain this action under the provision of Section 11233, which provides that when an action is commenced or attempted to be commenced, if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal has expired, the plaintiff may commence a new action within one year after such date.
It has been held by the supreme court of this state, in the case of Appel, Admr., v. Cooper Ins. Co., 76 Ohio St., 52, that such a provision as is contained in this policy creates a valid contractual relation and limits the time within which a suit may be brought thereon. Section 11233 is a statute of limitation and provides for extending the time in which an action may be commenced when the time limited for the commencement of such action at the date of the failure has expired.
The supreme court, in the case just referred to, has held that parties can contract for limitation of an action and that it would supersede and prevail over the general statute of limitations, and I am unable to see why it would not supersede or prevail over any exception or special statute in reference to the limitation of the action, if the language of the contract would bear such a construction. We then turn to the language of this contract, stipulating that no suit or action on the *115policy, for the recovery of any claim, can be maintained in any court of law or equity unless begun within the time prescribed. It does not except any suit. The provision of the contract is so plain that it does not require construction. It simply bars all actions, whether they be second or first actions, and it appears to me that to say that it would not prevent the maintaining of an action under Section 11233 is limiting the plain wording of the contract.
It seems that the supreme court of this state has never passed upon this exact question, but it has been before the courts of other states a great many times and also before the supreme court of the United States.
“The action mentioned in the condition which must be commenced within the twelve months, is the one which is prosecuted to judgment. The failure of a previous action from any cause cannot alter the case; although such previous action was commenced within the period prescribed.” Riddlesbarger v. Hartford Insurance Co., 7 Wall., 386, second proposition of syllabus.
It is true that the supreme court was then discussing a provision of the Missouri statutes somewhat different from ours, but after that discussion, on page 391, they refer, in the second place, to its general effect, saying: “The rights of the parties flow from the contract. That relieves them from the general limitations of the statute, and, as a consequence, from its exceptions also.’2
The supreme court of Iowa, in the case of Harrison v. Hartford Fire Ins. Co., 102 Ia., 112, were considering a policy of insurance containing the *116same provision as that now before the court, and a statute fully as broad as ours, and they held that a second suit begun within a period of the excepting statute but beyond the limitation fixed by the policy could not be maintained, citing quite a number of authorities in support thereof.
That court again affirmed this principle in the case of Wilhelmi v. Des Moines Ins. Co., 103 Ia., 532. See also the following cases: Howard Ins. Co. v. Hocking, 115 Pa. St., 415, 18 Atl. Rep., 614; McElroy v. Continental Ins. Co., 48 Kans., 200; Lezvis v. Metropolitan Life Ins. Co., 180 Mass., 317; Wilson v. Aetna Ins. Co., 27 Vt., 99; Chichester v. New Hampshire Fire Ins. Co., 74 Conn., 510, 51 Atl. Rep., 545.
My attention has been called to the case of Hamilton v. Royal Ins. Co., 156 N. Y., 327, as an authority against this proposition. In that case the action was begun and summons issued three days prior to the expiration provided in the policy, but summons was not served until after that time had expired. The question of the right to maintain the action was raised, and the court in that case discusses their statutes at quite a’ length. It is difficult without having the statutes before me to determine just what their statutes provide, but it seems that a provision of their code provided that the attempt to commence an action iti a court of record was equivalent to commencing it, and that was the question the court was. determining. It was held that the filing of a petition and causing a summons to issue was a commencing of the action under their code within the time provided in the policy, although the summons was not served *117on defendant until after the limitation named in the policy had expired.
I am unable to see how that case in any way affects the question we now have before us for determination, and especially as that court, prior to that time, in the case of Arthur v. Homestead Fire Ins. Co., 78 N. Y., 462, had passed upon the question now before us, holding that the action was not maintainable. This last-named case, so far as I can discover, has never been overruled by that court.
For these reasons I am unable to concur in the opinion of the majority.