This is аn appeal from an order in the Seaboard Air Line Railway receivership ease disallowing priority in payment to a judgment obtained against the railway company in the courts of South Carolina on account of a personal injury sustained in that state. The quеstion involved is whether the limitation prescribed by a statute giving judgments for personal injuries priority of lien over railroad mortgages, which was in force at the time of the injury, is applicable so as to defeat the claim of priority, or whether appellant is entitled tо the benefit of a statute passed, after his cause of action had accrued and after the right to obtain priority over mortgages under the prior statute had been lost by delay.
Plaintiff was injured on January 26,1927. He did not institute action to recover on account оf his injury until August 8, 1928. On April 26,1929, he obtained a verdict for $15,-000; and, from an order refusing a new trial, an appeal was taken to the Supreme Court of South Carolina. 159 S. C. 538,
“Lien of Judgments for Personal Injury or Injury to Property — Priorities.—Whenever a cause of action shall arise against аny railroad or street railway corporation for personal injury or injury to property sustained by any person, and such cause of action shall be prosecuted to judgment by the person injured, or his or their legal representatives, said judgment shall relate baсk to the date when the cause of action arose, and shall be a lien as of that date upon the income, property and franchise of said corporation, enforeible in any Court of competent jurisdiction by attachment or levy and sale under execution, and shall take precedence and priority of *151 payment of any mortgage, deed of trust or other security given to secure the payments of bond’s made by said railroad or street railway company: Provided, Any action brought under this Section shall be сommenced within twelve months from the time that said injury was sustained.”
On March 28,1930, while appellant’s case was pending in the Supreme Court of South Carolina, the Legislature of that state passed an act amending the statute of 1883, which, in so far as it related to personal injuries, was in the exact language which we have quoted, except that the limitation in the proviso was two years instead of twelve months (Act March 28, 1630, 36 St. at Large, p. 1363). The contention of appellant is that this statute, and not the original statute of 1882, should be applied to aрpellant’s case, which was pending on appeal in the Supreme Court at the time of its passage; and that, if it be applied, the judgment obtained by plaintiff is given priority over the mortgages given by the railroa,d company, as the action in which the judgment was obtained was instituted within the two years allowed by that statute, al1 hough not within the twelve months required by the statute of 1882. There were six mortgages or deeds of trust on the property of tho railroad, all of which were executed after the passage of tho act of 1882 and prior to that of 1930.
It will be observed that the statute of 1930 did not expressly change one of the provisions of a former statute, as was the case in Kelleher v. French (D. C.)
It is true that statutes relating to practice and procedure generally apply to pending actions and those subsequently instituted, although the cause of action may have arisen before. Duggan v. Ogden, supra; 25 R. C. L. 791, 792; Baltimore & P. R. Co. v. Grant,
The change made by the statute of 1930, therefore, was not а mere change in procedure, hut a change affecting substantive rights; and, as to such statutes, tho rule is well settled that they will not be given a retroactive effect unless it clearly appears that the Legislature so intended. William Danzer & Co. v. Gulf, etc., R. Co., supra; Fullerton-Kruеger Lumber Co. v. Northern Pacific R. Co.,
In the case at bar the statute, to be of help to appellant, must be construed, not only as having retroactive effect, but also as reviving a right which had been lost by lapse of time. The statute of 1882 gives priority of right to a judgment only where the action in which it is obtained is instituted within twelve months. Appellant waited more than eighteen months to institute his action, and by his delay lost all right to obtain a judgment which would have priority over existing mortgages. It is well settled that a statute of limitations will not be so construed as to аffect a cause of action already barred, if such construction can reasonably be avoided, and that this principle is peculiarly applicable where the limitation in force when the cause of action accrued is a part of the right оf action itself. 37 C. J. 697; Stoddard v. Owings, 42 S. C. 88,
“That was an action on a contract for the recovery of money. By a state statute of limitations the right of action had been barred. The statute was repealed before the action was commenced. It was held that the action could be maintained, and that such repeal did not deprive the debtor of his property without due process of law in violation of the Fourteenth Amendment. The decision rests on the conceрtion that the obligation of the debtor to pay was not destroyed by lapse of time, and that the statute of limitations related to the remedy only, and that the removal of the bar was not unconstitutional. The opinion distinguishes the ease from suits to recover real and рersonal property. That case belonged to the class where statutory provisions fixing the time within which suits must be brought to enforce an existing cause of action are held to apply to the remedy only. But such provisions sometimes constitute a* part of the definitiоn of a cause of action created by the same or another provision, and operate as a limitation upon liability. Such, for example, are statutory causes of action for death by wrongful act. (Citing cases.) This case belongs to the latter clаss. _ Section 206 (f) will not be construed retroactively to create liability. To give it that effect would be to deprive defendant of its property without due process of law in contravention of the Fifth Amendment.”
The foregoing quotation furnishes another reason why the statute should not be interpreted as reviving rights which had been lost prior to its passage; for, as so interpreted, it would offend the due process clause of the Fourteenth Amendment. At the end of the twelve-month period allowed by the statute of 1882 for the commencement оf suit, the right of appellant to obtain a judgment which would constitute a lien on the property of the railroad superior to the liens of the recorded mortgages was gone; and the mortgages then had priority over any judgment which he might obtain on account of his injuries. For the Legislature by subsequent statute to displace this priority of the mortgages in favor of a pre-existing liability not entitled to priority would be simply to take the property of one person by legislative action and give it to another; and a clearer violation of the due process clause could not well be imagined.
It is to be noted that this is not a ease where mortgages have been executed subsequent to the passage of a statute giving priority to judgments for personal injuries, as was the ease in Southern R. Co. v. Bouknight (C. C. A. 4th)
It is of course well settled that a statute is not to he construed to have an effect which would render it unconstitutional if it can rеasonably be given any other construction. 25 R. C. L. 1000-1003; Sohn v. Waterson,
It is unfortunate for appellant that he should hаve delayed the institution of his action until his right to obtain a judgment having priority of lien over the mortgages given by the railroad company had been lost; but it is clear that, under the well-settled rules of statutory interpretation, the subsequently enacted statute of 1930 cannot be construed as restoring that right.
The order appealed from will be affirmed.
Affirmed.