Ewell v. Chicago & N.W. Ry. Co.

• Citation: 29 F. 57
• Parties: EWELL, Adm'x, v. CHICAGO & N.W. RY. CO.
• Decision Date: 01 January 1886
• Court: U.S. District Court — Southern District of Iowa

29 F. 57

EWELL, Adm'x, v. CHICAGO & N.W. RY. CO.

United States Circuit Court, S.D. Iowa, Western Division.

September Term, 1886

Mr Warren and Jacob Sims, for plaintiff.

John N Baldwin and N.M. Hubbard, for defendant.

SHIRAS J.

In this action, plaintiff, as the administratrix of the estate of Charles A. Ewell, seeks to recover damages against the defendant company on the ground that Ewell's death was caused by the negligence of the company. From the record it appears that Ewell was injured on the fifteenth day of August, 1883, by a train on defendant's road at Missouri Valley, Iowa; that he lived from one to three hours after receiving the injuries resulting in his death; that plaintiff was appointed administratrix of his estate in the spring of 1885; that the petition in this cause was filed in the district court of Harrison county, Iowa, on the twenty-ninth day of May, 1885; that no original notice was issued or served in the case; and that the defendant company entered its appearance in the action on the twenty-fifth day of August, 1885, at which time the company filed an answer, and also a petition for the removal of the cause to this court.

The demurrer presents the question of the statute of limitations and in its determination it is necessary to ascertain when the action was commenced, and when the cause of action accrued.

Section 2599 of the Code enacts that actions in a court of record shall be commenced by serving the defendant with a notice signed by the plaintiff or his attorney. Section 2532 provides that the placing the notice in the hands of the sheriff for immediate service or actual service upon defendant, by some third person, shall, of far as the statute of limitations is concerned, be deemed to be the commencement of the action.

In Collins v. Bane, 34 Iowa, 385, it appeared that the petition was filed January 28, 1870, but the notice was not delivered to the sheriff for service until June 17, 1870. On the nineteenth of April, 1870, an act of the legislature took effect, repealing section 2742 of the Revision, which was part of the statute of limitations, but providing that the repeal should not affect the rights of parties in actions pending at the time of the passage of the act. The supreme court of Iowa held that the repeal did affect the parties in that suit, because it was not the filing of the petition, but the delivery of the notice for service to the sheriff, that was the commencement of the action.

In the case at bar, therefore, the filing of the petition was not the commencement of the suit, and the period of limitation continued to run until the notice was issued for service, or the defendant, by a voluntary appearance to the action, obviated the necessity of service of the notice. It is admitted that no notice was ever issued or served, but that the defendant entered an appearance on the twenty-fifth day of August, 1885, and this, therefore, must be taken to be the date when the statute ceased to run.

By the provisions of section 2529 of the Code of Iowa, actions of this character are barred within two years 'after their causes accrue.' Hence the present action cannot be maintained, unless the cause thereof accrued within two years prior to August 25, 1885.

On behalf of plaintiff it is argued that under the facts of this case, and the provisions of section 2526 of the Code, two causes of action against the defendant have accrued,-- one in favor of the party injured, and one in favor of his estate. As it is admitted that Ewell was not instantly killed, but lived from one to three hours after receiving the injuries causing his death, it is clear that before his death a cause of action had vested in him, and, under section 2525 of the Code, the same passed to his administratrix upon his death. Kellow v. Central Iowa Ry. Co., 23 N.W. 740; S.C. 27 N.W. 466; Muldowney v. Central Ry. Co., 36 Iowa 468. Whether the subsequent death of the party injured constituted, under the statute, a new cause of action in favor of the estate of the deceased, and for which an independent action might be brought, was discussed by the supreme court of Iowa in Sherman v. Western Stage Co., 24 Iowa, 515, but was not authoritatively decided. If it be held that, under such circumstances, a new or additional right of action is not created or conferred by the statute, then, in the case at bar, the right of action having accrued to the deceased during his life-time, the period of limitation began to run at the date of the wrongful act which caused the injury to the deceased, to-wit, August 15, 1883. Having commenced to run during the life-time of the party, no subsequent disability will suspend it unless the statute expressly so provides. Sherman v. Western Stage Co., 24 Iowa, 515; Hogan v. Kaertz, 94 U.S. 773; Harris v. McGovern, 99 U.S. 161; McDonald v. Hovey, 110 U.S. 619; S.C. 4 Sup.Ct. Rep. 142. None of the exceptions in the statute of Iowa are applicable to the case; and it follows that the limitation of two years, having commenced to...