Executors of Bates v. Sandusky, Dayton & Cincinnati Railroad ( 1861 )

By the Court.

The plaintiffs, on the 7th of February, 1859, filed their petition in the court of common pleas, to recover of the defendant damages to the amount of $177 50, for having, by carelessly running its trains along its railroad, destroyed and injured cattle belonging to testator, on the 1st of June, 1854, and again on the 30th of September, 1854, of the value and to the amount of $177 50. The petition, after stating the particular facts constituting the causes of action, states that on the 18th of July, 1855, the said Bates, then in full life, commenced an action in said court of common pleas for a recovery upon said causes of action, and at the October term, 1855, recovered judgment against the defendant, who thereupon appealed the cause to the district court; and that at the August term, 1858, of the district court, the action was dismissed'by the court without prejudice to a future action by the plaintiff; that said Bates has since deceased, and that the plaintiffs are his executors, and have brought this their action within less than one year from the time of the dismissal of said action at said August term, 1858; and ask judgment for said damages, etc.

■On demurrer to the petition, held: That under section 23 of the code of civil procedure the plaintiffs were entitled to a year after the dismissal, within which to commence another action, as well for the last mentioned cause of action, for the commencement of an action upon which the time limited had not expired, as for the first mentioned cause of action upon which the time so limited for commencing an action had expired at the time'of the dismissal of the action by the district court.

Judgment of the court of common pleas reversed.