| N.J. | Mar 2, 1910
The opinion of the court was delivered by
The record returned with the writ in this case comprises a declaration, a demurrer thereto,
The writ of error is tested on the 7th day of May, 1909, two days before the expiration of the time within which, by the terms of the above-recited order, the defendants were entitled to plead. The case, therefore, involves the preliminary question whether the order returned with the writ is reviewable on error. In other words, whether it is a final judgment.
It is apparent that this order, in the form in which it is entered, is not, in itself, a final judgment, dispositive of the matters in litigation between the parties to the suit. It is, rather, a judgment nisi, permitting the plaintiff to enter judgment final at the expiration of the five days limited therein, unless in the meantime the defendant shall plead to the action. But the act of the defendant in suing out his writ of error was, in its legal effect, a refusal to accept the privilege extended to him by the court; for a necessary preliminary to the filing of a plea, after the overruling of a demurrer, is the withdrawal of the demurrer. By adopting this course of procedure he has abandoned any defence which he may have to the action upon the merits, and unless he can succeed in reversing the order entered against him there remains to be done nothing except to assess the plaintiff’s damages, and tax his costs. This being so, the suing out of the ■writ of error rendered the order a judgment final in effect, though not in form, and it is, consequently, reviewable on error. Tomlinson v. Armour & Co., 46 Vroom 748.
Turning to the merits, the following situation is disclosed. Charles Bretthauer, the plaintiff’s intestate, was a resident of the city of Elizabeth, and came to his death in that city on the 16th day of March, 1907, by being run over by a wagon
Thie right of an administrator to maintain an action in this state for the wrongful dea i h of his decedent rests entirely upon statutory law. Our act of March 3d, 1818 (Gen. Stat., p. 1188), which confers such right, required, in its original form, that such action should he instituted within twelve calendar months after the death liad occurred. This limitation was extended by an amendment to the act, passed May 8th, 1907 (Pamph. L., p. 386), io twenty-four calendar months after such death. The amendment referred to took place fifty-three days subsequent to the death of Mr. Bretthauer, and the question presented by the demurrer was whether the defendants’ liability to answer for that death ceased at the end of twelve months after its occurrence, or was extended to twenty-four months thereafter by force of the amendment of 1907. The court below concluded that by the amendment the defendants’ liability was extended to the 16th day of March, 1909, and as the present suit was begun a month before that date, held that it was within the-period fixed by the statute.
If tiie provision in the .Death act fixing the time within which suits instituted thereunder should be brought was an ordinary statute of limitations, dealing only with the remedy given to the plaintiff, the conclusion reached by the court below would be sound beyond controversy, for it is entirely settled that until the period fixed by such a statute has arrived the statute is a more regulation of the limitation, and, like other such regulations, subject to legislative control. But this provision of the Death act is not an ordinary statute of limitations. It operates not only as a limitation of the remedy given the plaintiff, but also as a limitation of the liability which it creates against defendants. Lapsley, Adm’x, v. Public Service Corporation, 46 Vroom 266. Consequently, when.
The judgment under review will be reversed.