Hanie v. . Penland

138 S.E. 165, 193 N.C. 800, 1927 N.C. LEXIS 463

Opinion

Brogden, J.

The cause of .action alleged in tbe complaint was for wrongful death of Garfield Hanie, plaintiff’s intestate, by virtue of tbe negligence of Joe Eice, a special deputy of defendant Penland, sheriff of Buncombe County.

. Tbe plaintiff offered in evidence tbe summons in tbe action, issued 8 March, 1926, and served on tbe defendants on 9 and 12 March, 1926. It further appears from tbe record that plaintiff’s intestate was killed on 7 April, 1924. It does not appear from tbe record that there was any evidence whatever offered tending to show that tbe suit for wrongful death of plaintiff’s, intestate was brought within a period of one year from the date of the accrual of the cause of action, to wit, 7 April, 1924. Indeed, the summons which was offered in evidence shows conclusively that the suit was not brought within one year after the cause of action accrued. C. S., 160, provides that an action for wrongful death must be “brought within one year after such death by the executor, administrator, or collector of decedent.”

In Bennett v. R. R., 159 N. C., 346, this Court held; “Under this statute, giving a cause of action on account of the wrongful killing of another, the provision that suit shall be brought within one year after death is a condition annexed, and must be proved by the plaintiff to make out a cause of action, and is not required to be pleaded as a statute of limitation.” Gulledge v. R. R., 147 N. C., 234; Gulledge v. R. R., 148 N. C., 567; Belch v. R. R., 176 N. C., 22; Reynolds v. Cotton Mills, 177 N. C., 412; Brick Co. v. Gentry, 191 N. C., 636.

The judgment of nonsuit is therefore correct, and is

Affirmed.