Meekins v. Norfolk & S. R. Co.

• Citation: 42 S.E. 333,131 N.C. 1
• Parties: MEEKINS v. NORFOLK & S. R. CO.
• Decision Date: 09 September 1902
• Court: United States State Supreme Court of North Carolina

42 S.E. 333

131 N.C. 1

MEEKINS v. NORFOLK & S. R. CO.

Supreme Court of North Carolina

September 9, 1902

Appeal from superior court, Tyrrell county; Geo. A. Jones, Judge.

Action by J. C. Meekins, administrator, against the Norfolk & Southern Railroad Company. From a refusal to dismiss the action, defendant appeals. Appeal dismissed.

Pruden & Pruden and Shepherd & Shepherd, for appellant.

E. F Aydlett, for appellee.

CLARK J.

This was an action under Code, § 1498, for damages for the death of plaintiff's intestate, caused by the wrongful act or neglect of the defendant. The original action was brought within one year from the death of the plaintiff's intestate, and a nonsuit was taken. Within one year after such nonsuit, but more than a year after the death of intestate, this action was begun. The defendant demurred ore tenus, and moved to dismiss the action, and appealed from a refusal of its motion. Code, § 166, provides: "If any action shall be commenced within the time prescribed therefor, and the plaintiff be non-suited *** the plaintiff *** may commence a new action within one year after such non-suit." The defendant contends that this provision is under the title in the Code applying to limitations, and that the time prescribed under section 1498 is not strictly a statute of limitations. Best v. Town of Kinston, 106 N.C. 205, 10 N.E. 997. But the original action was brought within the time prescribed in section 1498, and therefore it does not here matter what the nature of that prescription is. On the other hand, the time within which a new action may be commenced after a nonsuit, etc., is a statute of limitation and applies to all cases where a nonsuit, etc., has been sustained. 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 limitation. We know no cause why the privilege to commence a new action within a year after nonsuit should not apply equally to all cases of nonsuit. The statute makes no distinction, and there is certainly none in the reason of the thing, which is the same as to that class of cases as in any others. No appeal lies from a refusal to dismiss an action (Clark's Code [3d Ed.] p. 738, and numerous cases there quoted; Clinard v. White, 129 N.C. 250, 39 S.E. 960), but we have, notwithstanding discussed the merits of the motion, as...