143 Ky. 418 | Ky. Ct. App. | 1911
OPINION OF THE COURT BY
Eeversing.
This action was brought by the personal representative of Wright Knight against the Illinois Central Railroad Company to. recover damages for his death, it being alleged in the petition that he was killed by the negligence of the defendant on April 4, 1909. The petition was filed November 22, 1910. The defendant, by its answer, pleaded among other things, the one year statute of limitation, the action having been brought about eighteen months after the death of the intestate. The plaintiff filed a reply to the plea of limitation to which the circuit court sustained a demurrer, and the plaintiff failing to plead further, dismissed the action The plaintiff appeals.
The facts admitted upon the demurrer are these: In April, 1909, the plaintiff as personal representative of Knight, filed an action in the Ballard Circuit Court against the railroad company to recover for his death, fixing the damages at $10,000. The defendant filed a petition, and on its motion the action was removed to the' Circuit Court of the United States. It came on for trial in the United States Circuit Court- at the November term, 1909, and at the conclusion of the plaintiff’s evidence, the defendant moved the court to instruct the jury to find for the defendant. The court thereupon allowed the jury to go until the next morning and heard argument upon the motion. At the conclusion of the argument that afternoon, the court announced that he would sustain the motion, and that the jury would be directed to find for the defendant upon the convening of court the next day. When the court met the next morning the plaintiff entered a motion to dismiss the case without prejudice. The defendant objected. The court being of opinion that the motion came too late refused to permit, the plaintiff to dismiss the action without prejudice and
“In all cases where the doing of an act necessary to save any right or benefit is restrained or suspended by injunction or other lawful restraint, vacancy in office, absence of an officer, or his refusal to act, the time covered by the injunction, restraint, vacancy, absence, or refusal to act, shall not be estimated in the application of any statute of limitations.”
If the United States Circuit Court had sustained the plaintiff’s motion to dismiss his action at the time it was made, the plaintiff might then have brought a new suit as only about eight months had elapsed after the death of his decedent. The refusal of the court to act and the judgment which he entered was a lawful restraint preventing the plaintiff from instituting the action which he afterwards instituted as soon as that restraint was removed. The circuit court of the United States refused to dismiss the action and until he dismissed it the plaintiff could not bring a new suit in the
Judgment reversed and cause remanded for further proceedings consistent herewith.