Lankford's Adm'r v. Barrett , 29 Ala. 700 ( 1857 )

WALKER, J.

This suit is predicated upon section 1938 of the Code, which is in the following words: “When the death of a person is caused by the wrongful actor omission of another, the personal representative of the former may maintain an action against the latter, at any time within one year thereafter, if the former could have maintained an action against the latter, for the same actor omission,had he lived.” The provision that the action under this statute must be brought within twelve months from the death of the injured person, and may be brought at any time within the twelve months, precludes an application to the action of the common-law doctrine of merger. The representative is permitted by the. statute to sue at any time after the death, within twelvemonths. If he is required to prosecute the offender criminally before action brought, he certainly would not be permitted to bring the suit at any time within twelve months. It is thus cl^ar that, to require such a prosecution, previous to the action, would abrogate a right conferred by the statute. The statute prescribes twelve months from the death, as the period within which the suit must be brought. If the suit cannot be brought until there is a criminal prosecution terminated, we should have the absurdity of a statute of limitations running against an action before the party had a right to commence it. The statute might, and in most Instances would, perfect a bar to the action, before the law permitted the party to bring the suit. For these reasons, we decide, that the statute, by its terms, forbids the requisition from the representative of the deceased of an antecedent criminal prosecution, and that the court below erred in sustaining the demurrer to the appellant’s complaint.

The judgment of the court belo w is reversed, and the cause remanded.