dissenting:
In my judgment neither the letter nor the spirit of the statute considered in this case warrants the construction given it by the court. Assuming it to be competent for the legislature to make giving notice a condition precedent to the right to begin an action, it has not done so by the statute under consideration. The act requires notice to be given within six months from the date of the injury and suit to be commenced within one year. The obvious purpose of the notice of the injury and claim for damages is to enable the municipality to investigate the validity and good faith of the claim before being called upon to defend against it upon the trial, and section 3 provides that unless it is given within the time required the suit shall be dismissed and the action be forever barred. This court has held the giving of the notice must be averred in the declaration, but whether it is necessary that the notice be given before filing a prcecipe and suing out a summons has not been heretofore presented for decision. This question was not involved in Erford v. City of Peoria, 229 Ill. 546, or in Walters v. City of Ottawa, 240 id. 259. In the Erford case no notice was ever given the city. In the Walters case it was held filing the statement or notice required by section 2 is essential to the right to maintain the suit; that a declaration which failed to aver compliance with the statute did not state a cause of action, and that a plea of the Statute of Limitations to an amended declaration filed more than one year after the injury occurred was a good plea. I was not in harmony with that decision, but conceding it was correct it should not control the decision in this case, as the question now before us was not then involved. The only justification for a decision productive of the unjust consequences that result front this decision would be the imperative language of the statute. I find no language in the statute that in my judgment warrants the construction given it. The principles of justice do not warrant it, for no possible prejudice or injury could have resulted to the city from filing the prcecipe before the claim and notice were filed. As the plaintiff recovered a judgment in the trial court, which was affirmed by the Appellate Court, it is a fair presumption that she had a meritorious cause of action. This, however, is lost to her, not because she failed to give notice within the time required or failed to aver giving the notice in her declaration filed within one year, but because she filed a prcecipe and had summons issued before filing the claim and notice. Every benefit that could accrue to defendant from being notified of the claim within six months was just as available to it as would have been the case if the prcecipe had not been filed until after the notice was given, and it seems to me the harsh and strict construction given the statute was not required by the language of the act.