Sims v. REA CONST. CO.

213 S.E.2d 398 (1975)

25 N.C. App. 472

Bertha G. SIMS, Administratrix of the Estate of Gayheart Alonzo Sims, Deceased v. REA CONSTRUCTION COMPANY.

No. 7426SC995.

Court of Appeals of North Carolina.

April 16, 1975.

*399 Seegers & Kilgore by Samuel R. Kilgore, Jr., Newland, for plaintiff-appellant.

Jones, Hewson & Woolard by William L. Woolard, Charlotte, for defendant-appellee.

MARTIN, Judge.

There is no dispute that plaintiff Bertha G. Sims, the South Carolina administratrix of the estate of Gayheart Alonzo Sims, is not the proper party to maintain the present action. In addition, it was more than two years after the death of Gayheart Alonzo Sims that a North Carolina administrator was appointed and plaintiff sought to substitute the resident administrator as party plaintiff.

The right of action for wrongful death is purely statutory. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963). In North Carolina, an administrator appointed by the court of another state may not maintain an action for wrongful death occurring in North Carolina. Monfils v. Hazlewood, 218 N.C. 215, 10 S.E.2d 673 (1940), cert. denied 312 U.S. 684, 61 S. Ct. 612, 85 L. Ed. 1122. The commencement of a wrongful death action by a foreign administrator in North Carolina will not operate to bar the running of the applicable two-year statute of limitations set forth in G.S. § 1-53, such action being a nullity and subject to dismissal. Merchants Distributors v. Hutchinson and Lewis v. Hutchinson, 16 N.C.App. 655, 193 S.E.2d 436 (1972).

Since no attempt was made to qualify a resident administrator until after expiration of the statute of limitations set forth in G.S. § 1-53(4), substitution of the resident administrator would not relate back and validate the present unauthorized action. Johnson v. Trust Co., 22 N.C.App. 8, 205 S.E.2d 353 (1974). It follows that the trial court did not err in refusing to substitute the resident administrator as party plaintiff and did not err in granting defendant's motion for summary judgment and for dismissal.

Affirmed.

BROCK, C. J., and VAUGHN, J., concur.