dissenting.
Contrary to the majority’s opinion, there can be no question but that a claim under the Nebraska Political Subdivisions Tort Claims Act is a statutory cause of action. Under common law, the king (sovereign) could do no wrong, and therefore there was no cause of action for common-law negligence against the sovereign. See Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d 805 (1968). A county, being a political subdivision of the state, having subordinate powers of sovereignty, was not liable at common law for negligence in maintaining a public road or bridge. Stitzel v. Hitchcock County, 139 Neb. 700, 298 N.W. 555 (1941). “[C]ounties are not liable to individuals for damages on account of the negligent or tortious acts of their officers or servants unless made so by statute.” (Emphasis supplied.)Id. at 703, 298 N.W. at 557.
In 1969, the Legislature enacted the Political Subdivisions Tort Claims Act in controversion of the common law. In doing so, the Legislature, in what is now known as Neb. Rev. Stat. § 13-902 (Reissue 1987), declared:
[N]o political subdivision of the State of Nebraska shall be liable for the torts of its officers, agents, or employees, and ... no suit shall be maintained against such political subdivision on any tort claim except to the extent, and *938only to the extent, provided by this act. The Legislature further declares that it is its intent and purpose through this enactment to provide uniform procedures for the bringing of tort claims against all political subdivisions... and that the procedures provided by this act shall be used to the exclusion of all others.
(Emphasis supplied.)
Neb. Rev. Stat. § 13-905 (Reissue 1987) provides that all tort claims must be filed and acted upon by the political subdivision against which the claim is made. Neb. Rev. Stat. § 13-906 (Reissue 1987) provides:
No suit shall be permitted under this act unless the governing body of the political subdivision has made final disposition of the claim, except that if the governing body does not make final disposition of a claim within six months after it is filed, the claimant may, by notice in writing, withdraw the claim from consideration of the governing body and begin suit under this act.
In Utsumi v. City of Grand Island, 221 Neb. 783, 785-86, 381 N.W.2d 102, 104 (1986), this court held that “ ‘[t]he notice of claim requirements of the Nebraska Political Subdivisions Tort Claims Act is a condition precedent to the institution of suit against a political subdivision____’ ” We also declared:
“When a privilege or right is conferred by statute on certain prescribed conditions, and a party desires to avail himself of such privilege or right by bringing action for the enforcement thereof, he must allege and prove all the facts essential to a strict compliance with the prescribed conditions.”
(Emphasis supplied.) Id. at 786, 381 N.W.2d at 104 (quoting Sole v. City of Geneva, 106 Neb. 879, 184 N.W. 900 (1921)).
Utsumi, supra, placed the burden upon a plaintiff to allege and prove compliance with the provisions of the Political Subdivisions Tort Claims Act, and that is where the burden should be. In today’s opinion, the majority has shifted the burden of raising the issue of compliance with the Political Subdivisions Tort Claims Act to the defendant political subdivision.
I see no reason to differentiate between tort claims and *939contract claims when pursued against a county. Yet, today’s decision does just that. A petition for the allowance of a claim against a county which is subject to the provisions of Neb. Rev. Stat. § 23-135 (Reissue 1987) is demurrable unless it shows on its face that the claim was filed with the county clerk within the statutory time. Jackson v. County of Douglas, 223 Neb. 65, 388 N.W.2d 64(1986).
The majority has improvidently departed from the rule adhered to in Utsumi, supra, and Jackson, supra.
White and Caporale, JJ., j oin in this dissent.