Gulledge v. Seabd. Air Line Ry

• Decision Date: 28 October 1908
• Citation: 62 S.E. 732,148 N.C. 567
• Parties: GULLEDGE. v. SEABOARD AIR LINE RY.
• Court: North Carolina Supreme Court

62 S.E. 732

148 N.C. 567

GULLEDGE.

v.SEABOARD AIR LINE RY.

Supreme Court of North Carolina.

Oct. 28, 1908.

1. Constitutional Law (§ 107^*) — Vested Rights—Supreme Court Decisions—Limitations—Construction.

A party can acquire no vested right in an adjudication of the Supreme Court construing a limitation in a suit to which he is not a party.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 246-251; Dec. Dig. § 107.*]

2. Action (§ 10*) — Conditions Precedent — Statutes Creating New Right—Failure to Sue—Excuse.

Where a statute created a new right of action, and imposed a limitation which was a condition to the exercise of such right, no explanations as to why suit was not brought within the specified time would avail to excuse the default, in the absence of a saving clause in the statute.

[Ed. Note.—For other cases, see Action, Dec. Dig. § 10.*]

On petition for rehearing. Petition dismissed.

For former opinion, see 147 N. C. 234, 60 S. E. 1134.

BROWN, J. The petition of the learned counsel for the plaintiff, asking us to reconsider our decision in this case, seems to be based upon the idea that we have overruled a decision in which by some means the plaintiff had acquired a vested right. Williams v. B. & L. Association, 131 N. C. 267, 42 S. E. 607. For the reasons so clearly stated by Mr. Justice Hoke in Mason v. Nelson (at this term) 62 S. E. 625, the plaintiff could acquire no vested right in such an adjudication as Williams v. B. & L. Association, had. we In fact overruled it. We do not think we have modified, much less overruled, it. In that case the court was construing the usury statute of 1895 (Laws 1895, p. 75, c. 69), containing provisions different from section 59 of the Revisal of 1905, and does not bear upon the question involved in this case. Nor have we overruled Meekins v. Railroad, 131 N. C. 1, 42 S. E. 333, in which the original action was brought within one year after death. The plaintiff was nonsuited, and brought his new action within 12 months after the nonsuit in the original action. This court held that section 166 of the Code, authorizing the new action after nonsuit, applied to all cases. The present Chief Justice, speaking for the court, says: "This statute (Code, § 166) contains no exception of cases under section 1498, or of any other cases, where the time prescribed for bringing the original action might not be strictly a statute of limitations." Best v. Kinston, 106 N. C. 205, 10 S. E. 997, is cited and approved in that opinion. This is one of the cases cited in our opinion in this case, wherein it is held by this court that the one-year clause in section 1498 is not a statute of limitation, but a condition annexed to the cause of action, and that the plaintiff must prove that he has commenced his action within the time required by the act.

In view of the great weight of authority sustaining them, we do not feel justified in overruling the well-considered decisions of this court, which we followed in deciding this case. Those cases are supported by an unbroken line of decisions in other jurisdictions. 8 American and English Ency. Law (2d Ed.) p. 875, cites cases from a large number of states in support of the statement in the text that, "as the statutes confer a new right of action, no explanations as to why suit was not brought within the specified time will avail, unless the statutes themselves provide a saving clause." Among the recent cases to the same effect will be found: Poff v. Telephone Co., 72 N. H. 164, 55 Atl. 891, citing Taylor v. Iron Co., 94 N. C. 525; Rodman v. Railroad. 65 Kan. 652, 70 Pac. 642, 59 L. R. A. 704, citing same case; Navigation Co. v. Lindstrom, 123 Fed. 475, 60 C. C. A. 649, construing the New Jersey statute; Williams v. Steamship Co. (D. C.) 126 Fed. 591. This case last cited holds that no action based on the New York statute can be maintained after the time limited; "nor is the time extended to cover the appointment of an administrator." Judge Adams says: "The language of the act is explicit: 'Such an action must be commenced within two years after the decedent's death, ' and, in view of the plain language, the time to commence an action can not be extended by construction." 13 Cyc. p. 339, says: "Where the statute giving a right of action for death by wrongful act limits the time within which such action must be brought to a certain designated period, and contains no saving clause, an action sought to be brought after the expiration of such period is barred, and no excuse will be recognized for such delay." The text is supported by authorities from the states of Alabama, Iowa, Maine, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio, Virginia, and Wisconsin. Mr. Tiffany, in his work on Death by Wrongful Act (section 121), relies upon and cites the decisions of this court in...