Johnson v. Wachovia Bank & Trust Co.

205 S.E.2d 353 (1974)

22 N.C. App. 8

Doris Overman JOHNSON, Administratrix of the Estate of Jack Johnson, Deceased v. WACHOVIA BANK & TRUST CO., Executor of the Estate of Raiford D. Baxley, Deceased.

No. 7418SC244.

Court of Appeals of North Carolina.

June 5, 1974.

*354 Edwards, Greeson & Toumaras by Harold F. Greeson, Greensboro, for plaintiff-appellant.

Henson, Donahue & Elrod by Joseph E. Elrod, III, Greensboro, for defendant-appellee.

CAMPBELL, Judge.

G.S. § 28-173 provides in pertinent part:

"When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their executors, administrators, collectors or successors shall be liable to an action for damages, to be brought by the executor, administrator *355 or collector of the decedent,. . ."

A wrongful death action cannot be maintained by a foreign administratrix and commencement of a wrongful death action in North Carolina by a foreign administrator will not operate to bar the running of the applicable two-year statute of limitations set forth in G.S. § 1-53(4), such action being a nullity and subject to dismissal. Merchants Distributors, Inc. v. Hutchinson and Lewis v. Hutchinson, 16 N.C.App. 655, 193 S.E.2d 436 (1972); Monfils v. Hazelwood, 218 N.C. 215, 10 S.E.2d 673 (1940); Reid v. Smith, 5 N.C. App. 646, 169 S.E.2d 14 (1969).

G.S. § 1-22, which extends the statute of limitations in suits against a defendant's estate up to one year after the issuance of letters of administration for said defendant's estate, is also of no avail to plaintiff in this case since she did not qualify and file suit within that time limit. Finally, plaintiff's qualification on 2 May 1973 will not relate back to the filing of the suit where no attempt has been made to qualify as administrator in North Carolina. Reid v. Smith, supra. This case is distinguishable from Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963), in that there the plaintiff attempted to qualify and did qualify in every respect except having the signature of the surety on the surety bond. In Graves v. Welborn, supra, the Court stated:

". . . However, we must not be understood as holding that one who has never applied for letters or who, having applied, had no reasonable grounds for believing that he had been duly appointed, can institute an action for wrongful death, or any other cause, upon a false allegation of appointment and thereafter validate that allegation by a subsequent appointment. . . ."

In the case at bar there was no substantial compliance as there had been in Graves v. Welborn, supra. The trial court did not err in granting the defendant's motions for summary judgment and for dismissal for failure to state a claim upon which relief could be granted.

No error.

MORRIS and VAUGHN, JJ., concur.