Wall v. Chesapeake & Ohio Ry. Co. , 1902 Ill. App. LEXIS 634 ( 1902 )

Mr. Justice Waterman

delivered the opinion of the court.

In this State the bringing of an action for damages arising from the death of a person caused by the wrongful act of another, within two years from such death, is a condition precedent to a recovery. Such, from the declaration, appears to be the law also of the State of Ohio.

It is necessary in this State to allege and prove that the action was begun within such time; and a. declaration that fails to so charge is obnoxious to a general demurrer. Chitty on Pleading, 16th Am. Ed. 329-337; Gunton v. Hughes, 181 Ill. 132; Barker v. Hannibal & St. Joseph Ry. Co., 91 Mo. 86-92; Hill, Adm’r, v. Town of New Haven, 37 Vt. 501, 511, 512; Henderson v. Wheaton, 139 Ill. 581; Tichenor v. Newman, 186 Ill. 264, 279, 280; Wood on Limitations, Second Ed., Sec. 9.

This action is brought under either a statute of the State of Ohio or the statute of the State of Illinois. If brought under the statute of this State the declaration fails to show that it was begun within two years from the death on account of which the suit is; if brought under the statute of Ohio it must, as to conditions precedent to the bringing thereof or limitations thereon, be brought within the terms of the statute of this State.

Courts are created by each state and nation for the convenience and benefit of its citizens and those coming therein; and the nature of the remedies as well as the regulation thereof are determined by its views of justice and propriety, and fashioned in accordance with its wants and customs.

Several of appellant’s counts set up the beginning of an action in the State of Illinois on the 29th day of March, 1898, its removal to the United States Court for the Northern District of Illinois, its dismissal there, and the further fact that according to the laws of Ohio, in case of action brought and dismissal other than upon the merits, when the time limited for the bringing of such action has lapsed a new action may be brought within one year after such dismissal.

NTone of these counts show that the present action was brought within two years from the death of Edward Wall; they are, moreover, an attempt to set up a remedy afforded by the law of Ohio, and argumentatively that the State of Illinois must, on account of the negligence and death taking place in Ohio, afford the remedies given by that State.

We do not regard the transfer of the former action to the United States Court as requiring that subsequent actions must be there brought. The distinction between a cause of action and an action is obvious.

The former action was transferred from the State to the United States Court; the cause of action remained in the plaintiff, and when the former action was at an end, the plaintiff could bring another action wrhere he saw fit.

The judgment of the Circuit Court is affirmed.