Opinion
No. 31462.
December 3, 1934.
1. EQUITY.
In equity courts, statute of limitations may be raised by special demurrer when facts justifying it distinctly appear on face of bill.
2. PLEADING.
In law courts, bar of statute of limitations cannot be availed of by demurrer to declaration (Code 1930, sec. 553).
3. COUNTIES.
In action against county on open account, declaration alleging that account was presented to county board by plaintiff's attorney and that payment was refused held not demurrable as failing to show sufficient presentation of claim to board of supervisors and demand for payment before suit (Code 1930, secs. 521, 553).
APPEAL from the Circuit Court of Smith County.
R.D. Cooper, of Meridian, for appellant.
The statute of limitation must be pleaded and not by demurrer.
115 Miss. 282; 133 Miss. 467; 114 Miss. 250.
The original and amended declaration both show that the account was presented by the attorney to the board of supervisors.
68 Miss. 88. J.D. Martin, of Raleigh, for appellees.
The declaration of the plaintiff in the lower court does not show that the indebtedness for which suit was instituted was ever presented by the board of highway commissioners to the board of supervisors for their ratification or rejection. It was the duty of said plaintiff to have followed up his or its claim, and to have seen that said claim was properly presented by the board of highway commissioners to the board of supervisors for payment or rejection, and having failed to do this, plaintiff cannot now be heard to complain.
Appellant sued the county in the circuit court on an open account. Appellee county demurred on the ground, first, that the declaration shows on its face that the statute of limitations had run against the account.
In the equity courts the statute of limitations may be raised by demurrer when the facts justifying it distinctly appear on the face of the bill, but this must be done by special demurrer. In actions in the law courts, special demurrers are abolished by section 553, Code 1930. Consequently, the bar of the statute of limitations cannot be availed of by demurrer to a declaration. Raleigh Co. v. Fortenberry, 133 Miss. 467, 97 So. 722.
Another ground of demurrer taken by the county is that the declaration fails to show any sufficient presentation of the claim to the board of supervisors, and demand for payment, before suit. The declaration alleges that the account was presented to the board by the attorney for appellant, and that order for payment was refused. This was sufficient. Clay County v. Chickasaw County, 76 Miss. 418, 24 So. 975.
As to the other grounds of demurrer, we think that the declaration "contains sufficient matter of substance for the court to proceed upon the merits of the cause," section 521, Code 1930, Hastings-Stout Co. v. Walker, 162 Miss. 275, 285, 139 So. 622, and that we should not attempt decision upon those matters of merit until the facts for both sides are fully developed.
The demurrer to the declaration as amended should have been overruled.
Reversed and remanded.