Opinion
Opinion filed April 24, 1931.
Writ of Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.
Reversed.
Caraballo, Graham Cosio, for Plaintiff in Error;
Baya and Baya, for Defendant in Error.
In the lower court a motion was made by the defendant (defendant in error) to dismiss the cause because the second amended declaration which was filed nearly four years after the accrual of the right to sue stated a cause of action different from that stated in the original and first amended declarations, and because it appeared from the second amended declaration that the cause of action as therein set out was barred by limitation of the statute. The motion was granted and the cause of action was dismissed.
One of the contentions made by the plaintiff in error is that the court erred in holding that the statute of limitations could be raised by motion to dismiss the cause.
In this State, the defense of the statute of limitations to actions at law cannot be raised by motion to dismiss or by demurrer.
"Whatever may be the rule in the Code stated, we cannot discover that in those states where the common-law system of practice prevails the defense of the statute of limitations can be presented otherwise than by plea." Punta Gorda Bank v. State Bank of Ft. Meade, 52 Fla. 399, 42 So. 846. See also Green v. Proctor Gamble Distributing Co., 92 Fla. 396, 109 So. 471.
The judgment is reversed and the cause is remanded for further proceedings.
The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered, and adjudged by the Court that the judgment of the court below be, and the same is hereby reversed and the cause is remanded for further proceedings.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL, BROWN AND DAVIS, J.J., concur.