Wright v. Kroydon Co.

• Decision Date: 11 February 1931
• Citation: 154 A. 195
• Parties: WRIGHT v. KROYDON CO.
• Court: New Jersey Circuit Court

154 A. 195

WRIGHT

v. KROYDON CO.

Circuit Court of New Jersey.

Feb. 11, 1931.

Syllabus by the Court.

A death action is regulated by the law of this state and not by the law of Michigan, where the cause of action arose, and is therefore subject to the two-year limitation under the statute of this state.

Syllabus by the Court.

Under rule 40 of the Supreme Court, legal points raised by the pleadings may be settled before trial.

Action by Charles D. Wright, administrator of the estate of Nellie Wright, deceased, against the Kroydon Company.

Judgment for defendant.

Smith & Slingerland, of Newark, for plaintiff.

Kellogg & Chance, of Jersey City, for defendant.

DUNGAN, C. C. J.

This is an action by a Michigan administrator of the estate of Nellie Wright, whose death is alleged to have been caused by the negligent operation of an automobile which collided with her in the state of Michigan, as a result of which she died November 1, 1927. The summons and complaint were issued October 31st, 1930, three years, less one day, after the death resulting from the accident.

The complaint was answered and a reply filed on behalf of the plaintiff, both of which raise points of law, which the defendant's attorney now moves to have determined under rule 40 of the Supreme Court, which is as follows:

"Demurrers are Abolished. Any pleading may be struck out on motion on the ground that it discloses no cause of action, defense or counterclaim, respectively. The order made upon such motion is appealable after final judgment. In lieu of a motion to strike out, the same objection, and any point of law (other than a question of pleading or practice) may be raised in the answering pleadings, and may be disposed of at, or after, the trial; but the court, on motion of either party, may determine the question so raised before trial, and if the decision be decisive of the whole case, the court may give judgment for the successful party or make such order as may be just. (Rule 26, Pr. act 1912.)"

The plaintiff claims that this motion is controlled by rule 30 of the Supreme Court, which gives the order of pleadings as follows:

"30. Order of Pleadings.

"The order of pleadings shall be—

"1. Complaint;

"2. Motion addressed to the complaint;

"3. Answer;

"4. Motion addressed to the answer;

"5. Reply."

And that, after the answer is filed, such a motion cannot be made, and cites as authority Apfelbaum v. Pierce et al., 126 A. 738, 2 N. J. Misc. R. 1150, and Klughaupt v. Acquackanonk Water Co., 126 A. 739, 2 N. J. Misc. R. 1188, but in both of those cases the motions were to strike out complaints, and therefore the court could have reached no other decision under rule 30; but in this case the motion is made, not, to strike out the complaint, but to determine the questions raised by the pleadings, before trial, under rule 40, which course seems to be approved by the decision in Lehigh Valley Railroad Co. v. United Lead Co., 102 N. J. Law 545, 133 A. 290.

It may be added that, there may be some doubt whether a motion to strike out the complaint would have been proper under rule 30, as in actions at law the bar of the statute of limitations is a defense, and that defense "is not available unless set up by plea" (Callan v. Bodine, 81 N. J. Law, 240 at page 242, 79 A. 1057), unless the cause of action be one which did not exist at common law, but is one which "has been created by statute which fixes a time within which the action must be brought as an essential element of the right to sue." Id. However, since the right of action in case of death is one created by statute, it may be that advantage of the statute of limitations may have been...