Manuel v. Norfolk & W. Ry. Co

• Decision Date: 31 January 1901
• Citation: 99 Va. 188,37 S.E. 957
• Court: Virginia Supreme Court
• Parties: MANUEL. v. NORFOLK & W. RY. CO.

99 Va. 188

37 S.E. 957

MANUEL.

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

Jan. 31, 1901.

LIMITATIONS OF ACTIONS—NONSUIT—AFTER PERIOD—STATUTE.

Code, § 2903, requires actions for wrongful death to be brought within 12 months. Section 2934, as amended by Acts 1897-98, p. 252, declares that the period of one year from the death of any party shall be excluded from the computation of time within which it may be necessary to commence any proceedings to preserve or prevent the loss of any remedy or right. Section 2919, as amended by Acts 1895-96, p. 331, provides that, when any action shall abate or be defeated for any of various enumerated causes, another action may be brought within a year, the statute not including the case of a voluntary nonsuit. Held, that where an action for death was brought within the period prescribed, but after the expiration of such period the plaintiff was nonsuited on his own motion, another action was barred, the case not being within section 2934 or 2919.

Action by one Manuel against the Norfolk & Western Railway Company. Judgment dismissing the action, and plaintiff petitions for writ of error to the circuit court of Warren county. Denied.

O'Flaherty & Fulton, for plaintiff.

Downing & Richards, for defendant.

PER CURIAM. The plaintiff's decedent is alleged to have lost his life by the negligence of the defendant on the 27th day of July, 1898. His administrator qualified on the 16th day of January, 1899, and instituted an action for damages, for the killing, on the 19th day of the same month. There was a mistrial at the February term of the court. The case was continued at the May term. At the October term of the court a juror was withdrawn, and upon motion of the plaintiff he was nonsuited because of the absence of a material witness, and judgment entered for costs. The plaintiff afterwards instituted another action for the same injury. The declaration, on its face, showed that the second action was instituted more than 12 months after the injury sued for. The court sustained a demurrer to it, and also to a replication, in which the proceedings in the former action were stated, and dismissed the action on the ground that the action had not been ' commenced within the time required by section 2903 of the Code.

Its judgment is plainly right. This case does not come within the provisions of section 2934 of the Code, as amended by act approved February 8.1898 (Acts 1897-98, p. 252), nor section 2919. as amended by...