Summers v. Southern Ry. Co
| Decision Date | 18 April 1917 |
| Docket Number | (No. 380.) |
| Citation | 92 S.E. 160 |
| Court | North Carolina Supreme Court |
| Parties | SUMMERS. v. SOUTHERN RY. CO. et al. |
Appeal from Superior Court, Davidson County; Webb, Judge.
Action by J. W. Summers against the Southern Railway Company and others and N. A. Bost. From a judgment dismissing the action, plaintiff appeals. Reversed.
Geo. W. Garland, of Salisbury, for appellant.
Linn & Linn, of Salisbury, for appellees.
On the hearing it was properly made to appear that in the spring of 1914 plaintiff, having given bond for costs, instituted an action against the North Carolina Midland Railway, a corporation said to be "owned, controlled, and operated by the present company, to recover damages for an alleged injury occurring in January of that year when plaintiff was a passenger on said road; that at July term, 1916, of superior court for said county cause came on for trial, and, both sides having introduced their evidence, there was judgment of nonsuit against the plaintiff, including a judgment for costs to the amount of $268; that in September 1916, plaintiff instituted this action against the present defendant to recover for the same injury without having paid the costs adjudged against him, and his honor, as stated, gave judgment dismissing the action, for the reason that the costs adjudged against plaintiff in the former suit had not been paid.
It is not required to examine into or decide the question whether the present action is the same as that in which the nonsuit was taken; for, if this be conceded, we are of opinion that under our decisions construing the statutes applicable to and controlling the subject the judgment dismissing the present suit cannot be sustained. In our statute of limitations (Revisal 1905, § 370) it is enacted that:
"If an action shall be commenced within the time prescribed therefor, and the plaintiff be nonsuited, or a judgment therein be reversed on appeal, or be arrested, the plaintiff, or if he die and the cause of action survive, his heir or representative, may commence a new action within one year after such nonsuit, reversal or arrest of judgment."
In Laws 1915, c. 211, Gregory's Revisal, Biennial 1915, p. 17, a proviso was annexed to the section as follows:
"Provided, that the costs in such action shall have been paid before the commencement of the new suit, unless said first suit shall have been brought in forma pauperis."
It will be noted that this section in question and the amendment thereto are a...
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