Dawes v. N.Y.

• Decision Date: 08 February 1899
• Court: Virginia Supreme Court
• Parties: DAWES. v. NEW YORK, P. & N. R. CO.

32 S.E. 778

(96 Va. 733)

DAWES.

v.NEW YORK, P. & N. R. CO.

Supreme Court of Appeals of Virginia.

Feb. 8, 1899.

Limitations—Abatement and Revival— Equity.

Code, § 2934, authorizing a new "action" within a year after abatement of a former action seasonably commenced, or reversal of a judgment on a ground not precluding a new action for the same cause, notwithstanding the bar of limitation in the meantime, does not apply to equitable proceedings.

Error to law and chancery court of city of Norfolk.

Bill by one Dawes against the New York. Philadelphia & Norfolk Railroad Company. There was a decree for defendant, and plain tiff brings error. Affirmed.

Heath & Heath, for plaintiff in error.

Borland & Wilcox, for defendant in error.

RIELY, J. It is plain that this suit, under the pleadings, cannot be maintained, unless the right to bring it is preserved by section 2934 of the Code; for, otherwise, as is conceded, the entire claim is barred by the statute of limitations.

Whether the right to bring it is so preserved depends upon the sense in which the word "action" is used in that section, —whether the legislature, in enacting the law, used the word in a technical sense, and meant it to apply only to actions at law, or also to include suits in equity.

The phraseology of the statute admits of no doubt as to its proper construction. Such of its provisions as have any bearing on this case apply, by their very terms, to actions which, for specified causes, abated, and to actions commenced within due time, in which judgment for the plaintiff was arrested or reversed upon a ground which does not preclude a new action for the same cause; and provide that a new action or suit may be brought within one year after such abatement, or such arrest or reversal of judgment. All these terms are peculiar to actions at law, and are wholly inapplicable to suits In equity. We do not speak of suits in equity abating, but only of actions at law; nor do we speak of the arrest of decrees, but only of judgments.

Section 2934 was taken literally from the Code of 1849; and the particular provisions under consideration were taken by the revisers of that Code from 1 Rev. Code 1819, c. 128, | 10, and, along with a similar provision from the act of January 13, 1842 (Acts 1841-12, p. 56)made section 18 of chapter 149 of the Code of 1849. It will be seen, on examining the Code of 1819, that the words "actions or suits" were there used interchangeably, and referred expressly to actions or suits mentioned in that chapter, all of which were actions at law.

The statute was originally taken from section 4, c. 16, of the statute of 21 Jac. I., and many of the other states also adopted it, or have a similar statute. Being a remedial statute, it has been liberally construed, and held to apply to cases not expressly within its provisions, but, by an equitable construction, within its spirit. Barker v. Millard, 16 Wend. 572; Coffin v. Cottle, 16 Pick. 383; and 1 Rob. Prac. 605, 606, and the cases there cited. An examination of the cases declared to be within the equity or spirit of the statute shows that they were all actions or proceedings at law. We have found no case in which it was held to be applicable to a suit in equity.

In Gray's Adm'x v. Berryman, 4 Munf. 181, and in Elam v. Bass' Ex'rs, Id. 301, which were decided under the statute of December 19, 1792, the language...