George v. Chicago, Milwaukee & St. Paul Railway Co., 51 Wis. 603

George v. Chicago, Milwaukee & St. Paul Railway Co.

51 Wis. 603 | Wis. | 1881

Lyon, J.

This action was brought under the provisions of R. S., sees. 4255, 4256. The same statute stands in the revision of 1858 as sections 12 and 13 of chapter 135. Section 13 contains the following proviso: “Every such action shall be commenced within two years after the death of such deceased person.” This limitation is incorporated in the present revision in section 4224, subd. 3.

The action is purely statutory, and can only be maintained on the terms and conditions, and under the circumstances, specified in the statute. The limitation of two years therein prescribed is absolute and unconditional. Hence, the right of action for the alleged negligent killing of the plaintiff’s intestate expired July 15,1877. The action can no more be brought and maintained after that date than could such an action be maintained in the absence of any statute giving it. The action could not have been brought before the plaintiff was appointed administrator. It appears from the complaint that he was not appointed until more than four years had elapsed after the death of the intestate. It therefore appears on the face of the *605complaint that the limitation of the statute had run against the cause of action before the action was commenced. But it was argued that the question of limitation cannot be raised by demurrer. That proposition was ruled the other way in Howell v. Howell, 15 Wis., 55. It was there held that the defendant may avail himself oí the statute of limitations on demurrer to the complaint, if it appears on the face of it that the statute bar was complete before the action was commenced, and if that is one of the causes of demurrer assigned. Whatever some of the members of this court may have thought of that judgment, the court has never overruled it or questioned its accuracy. It has stood as the law of this state since it was pronounced — nearly twenty years ago, — and the rule is incorporated in the present revision of the statutes. R. S., 725, sec. 2649, subd. 7.

By the Court. — The order overruling the demurrer to the complaint is reversed, and the cause remanded with directions to the circuit court to sustain such demurrer.