whether they appear in the statute creating the right or in a
As stated previously, no case has been found which involves
the limitations of actions under the Arizona death statute. An
examination of the legislative history of the Arizona death
statute can serve to cast some light on the problem. First of
all, the present two year period of limitations, as found in
Sec. 29-202(5) of the 1939 edition of the Arizona Code
Annotated, is found in Sec. 2950 of the Arizona Revised
Statutes, 1901 edition, Sec. 710(5) of the 1913 edition and
Sec. 2059 of the 1928 edition.
The statutory action for wrongful death is set out in Secs.
2764-2766 of the 1901 edition. Sec. 2766 includes a specific
proviso that the action must be brought within one year of the
date of death. Sec. 3375 of the 1913 edition includes a
specific proviso that this action must be brought within two
years of the date of death.
In the 1928 edition, the comparable provisions of the 1901
and 1913 editions are found in Sec. 945. This section includes
no proviso setting out a special period of limitations.
Aside from the fact that the language of the current Sec.
29-202(5) of the 1939 edition refers solely and specifically
to an action for wrongful death, this court is of the opinion
that it can reasonably infer from this legislative history
that, in 1928, the Arizona legislature omitted the special
limitations in the wrongful death statute with the intent that
such statutory action be qualified by the specific provisions
of Sec. 2059, which is now Sec. 29-202(5) of the 1939 edition.
The fact that until the revision of 1928 a special period of
limitations was included in the statute creating an action for
wrongful death lends support to the reasonableness of this
inference. It is, therefore, the view of this court that the
two year limitation period of Sec. 29-202(5), both by language
and by legislative intent, is directed to the statutory death
action so specifically as to warrant saying that it qualifies
the right. Consequently, that period of limitation will govern
this action in accordance with the rationale of the Davis and
The decedent died on March 9, 1948. This action was filed on
February 21, 1950, within the two year provisions of Sec.
29-202(5). The defendant's plea of limitation cannot be
The case of Anderson v. Linton, supra, upon which the
defendants rely can be distinguished from the present case. In
that case, the plaintiff sought to apply in a federal district
court of Illinois an Iowa period of limitations which is
general and which does not refer specifically to an action for
wrongful death. Iowa Code Annotated, § 614.1(3). The language
of this section is such that it could not be brought within the
reasoning of the Davis and Maki cases. Secondly, it is settled
Iowa law that this general statute of limitations merely bars
the remedy but that does not extinguish the cause of action.
Burns v. Burns, 233 Iowa 1092, 11 N.W.2d 461, 150 A.L.R. 306;
Williams v. Burnside, 207 Iowa 239, 222 N.W. 413, Anderson v.
Anderson, 234 Iowa 277, 12 N.W.2d 571. No such judicial
determination has been made relative to the Arizona statute of
limitations under consideration in this case.
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