12 S.E.2d 553 | N.C. | 1940
Plaintiff instituted her action to recover damages for the wrongful death of her intestate, alleging that this was due to the joint and concurrent negligence of the defendants. The death of her intestate occurred 21 February, 1939, and the present action was begun *703 21 August, 1940, but in order to show compliance with the statutory requirement that an action for wrongful death be brought within one year, and to bring herself within the protection of C. S., 415, the plaintiff added the following allegation:
"That heretofore, to wit, under the 1st day of June, 1939, an action was begun in the Superior Court of Durham County, entitled `Jane Montgomery v. Grace M. Blades, administratrix of the estate of William B. Blades, deceased, Southern Railway Company and the City of Durham,' and in said action the plaintiff herein set up a cross action against the defendants herein, and that upon motion of the defendants herein said cross action was dismissed by the Supreme Court of North Carolina in an opinion filed on June 8th, 1940."
Plaintiff further alleged that the cross action referred to was for the same cause of action as set out in the complaint in the present action, and that before the institution of this action she had paid all costs taxed against her in the former action.
The defendants' demurrer, on the ground that it appeared on the face of the complaint that this action was not instituted within one year from the death of plaintiff's intestate, was overruled, and the defendants excepted and appealed to this Court.
The question presented by the appeal is whether the plaintiff's right to maintain this action for wrongful death, begun more than a year after the death of her intestate, is protected by the provisions of the statute (C. S., 415) permitting a new action within one year after nonsuit. Does the dismissal of a cross action set up against her codefendants in a former suit have the same effect as a nonsuit, and entitle plaintiff to institute a new action against the same defendants, more than twelve months after the death of her intestate and within one year of the date of the dismissal of the cross action?
While the statutory requirement that suit for wrongful death be brought within one year of such death (C. S., 160) is not strictly a statute of limitations, but rather a condition annexed to the plaintiff's cause of action (Trull v. R. R.,
Section 415 in terms refers to cases of nonsuit, or to those in which the judgment has been reversed or arrested. A nonsuit is the term appropriate to designate the action of the court in ending the case when the complainant fails to proceed to trial, or is unable to prove his case.Cooper v. Crisco,
It is alleged in the plaintiff's complaint in this action that her cross action, set up in the case of Montgomery v. Blades and others, and against her codefendants, the Southern Railway Company and the city of Durham, was dismissed by the Supreme Court. It appears from an examination of the Court's opinion in that case (reported in
In the case of Montgomery v. Blades and others, all the parties were in court. Grace M. Blades, administratrix of William B. Blades, one of the defendants, filed a cross action against her codefendants setting up the same cause of action as that stated in her complaint herein. Her action against the defendants originated there. Under the statutes prescribing general rules of pleading and under the decisions of this Court the right of one defendant in an action to set up a cross action against another defendant, in proper case, seems to have been well recognized. C. S., 602;Hulbert v. Douglas,
The necessary requirement is that the cross complaint against a codefendant be founded upon or connected with the plaintiff's cause of action. Montgomery v. Blades,
It seems to have been definitely decided by the decisions of this Court that when the first action has been dismissed for want of jurisdiction, *705
a new action within time will be protected from the bar of the statute.Bradshaw v. Bank,
The original statutory provision for permitting a new action within twelve months to prevent the bar of the statute, when the judgment has been reversed or arrested, was contained in the Act of 1715. In construing that ancient statute in Skillington v. Allison,
Here Grace M. Blades, administratrix, as soon as she was brought into court, together with the Southern Railway Company and the city of Durham, by Jane Montgomery's suit, filed her cross action against her codefendants for damages for the wrongful death of her intestate. That method of presenting her claim was held proper in the court below, but upon appeal by these defendants the cross action was dismissed. As soon as that authoritative ruling was announced, she instituted this action for the same cause against the same parties. Webb v. Hicks,
Applying the reasoning underlying the decisions in the above cited cases, it would seem that under the present statute her cross complaint in the first action should be regarded as the origination of the present action, and that she should be held entitled to invoke the provisions of C. S., 415, to prevent the bar of the statute.
The cases of Hall v. R. R.,
We have examined the other North Carolina cases cited and do not regard any of them as militating against the conclusion here reached.
Defendants' counsel in their diligence have cited numerous cases from other states, but these chiefly refer to instances where process in the first action was not properly served, and hence do not aid us in the interpretation of the statutes under consideration.
The judgment below is
Affirmed.