Benjamin v. Eldridge

By the Court: 1. The death of the plaintiff’s intestate occurred on the 28th day of December, 1871, while the statute of April 26, 1862, entitled “An Act requiring compensation for causing death by wrongful act, neglect, or default,” was in force— which statute required the action to be commenced, if at [613]all, “ within two years after the death of such deceased person.” The action here was commenced on the 26th day of June, 1874—some two years and six months after the death.

2. The act of April 26,1862, was substantially re-enacted (Sec. 5, 0. 0. P.) by sections 376-77 of the Code of Civil Procedure of January, 1873, which Code was in force when the action was commenced, and the limitation therein prescribed was the same as that which had been prescribed by the act of April 26, 1862. (Code Civil Procedure, Sec. 339, subd. 4.) And the statute having commenced to run under the provisions of the act of 1862, continued to run, notwithstanding the taking effect of the Code of Civil Procedure (Sec. 9, 0. C. P.), and the cause of action was barred by the lapse of the period of two years after the death of the plaintiff’s intestate. The court below correctly sustained the demurrer to the complaint, and the judgment must be , affirmed.

Judgment affirmed.