"There are many cases in Missouri which have held double and treble damages, in similar situations, as penal for the purposes of the statutes of limitations. See, e.g., Young v. [Kansas City, St. J. C.B.] Railway Company, 33 Mo.App. 509 (involving treble damage provisions in favor of a person charged a rate in excess of permissible rates); McCormick v. Kaye, 41 Mo.App. 263 (involving action for treble or double damages under the trespass statute); Vroom v. Thompson [ 227 Mo. App. 531], 55 S.W.2d 1024 (involving civil liability imposed upon a corporation officer); Revelle v. St. Louis, I.M. S. Ry. Co., 74 Mo. 438 (involving double damage provision for failure of railroad to maintain proper right of way); Fitzmaurice v. Turney [ 256 Mo. 181], 165 S.W. 307 (involving penalty for each day that a private road remained closed after being ordered open); Bru[u]n v. Katz Drug Co., Inc. [ 359 Mo. 334], 221 S.W.2d 717 (discussing recovery of damages by a person improperly discharged by a corporation). Also see Ratican v. Terminal Railroad Ass'n, 114 Fed. 666 (8th CCA) (holding that an action under Section 8 of the Interstate Commerce Act [49 U.S.C.A. § 8], where the federal law provided no limitation, seeking recovery of a penalty for discrimination in rates, is governed by the Missouri statute of limitations applying to penalty and forfeiture).

terest in the subject matter of the action, the substitution of a proper plaintiff will relate back to the time of filing of the original action by the one without authority to prosecute it, and the intervening running of the statute of limitations will not be held to bar the action by the substituted plaintiff, but, on the other hand, if the original action was brought by an improper plaintiff who had no legal or beneficial interest in the subject matter of the action and later — but after the statute of limitations has run — a proper party plaintiff is substituted, the substitution will be treated as a new action, and the action will be held to be barred by the Missouri statute of limitations. Pyle v. University City, Mo. App., 279 S.W. 217; Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618; Tiffin v. Leabo, 52 Mo. 49; McLendon v. Kissick, 363 Mo. 264, 250 S.W.2d 489; Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 111 S.W.2d 1; Webster v. Joplin Water Works Co., 352 Mo. 327, 177 S.W.2d 447; Brunn v. Katz Drug Co., 359 Mo. 334, 221 S.W.2d 717; Meservey v. Pratt-Thompson Construction Company, Mo. App., 291 S.W. 174, and Leimer v. Woods, 8 Cir., 196 F.2d 828. Here, as held in our former opinion referred to, the original plaintiff, Rosenfeld, did not have, at the time of the institution of this suit, nor since, any legal or equitable title to, or beneficial interest in, the subject matter of this suit, and, therefore, the substitution of St. Paul Fire Marine Insurance Company, as plaintiff herein, on November 26, 1955, did not relate back to the time of the institution of this action by Rosenfeld, and, meanwhile, the Missouri five-year statute of limitations had run, and this action by the substituted plaintiff, St. Paul Fire Marine Insurance Company — treated, as it must be, as a new action, commenced by it on November 26, 1955 — is barred by limitations, if the Federal courts are bound by the terms of the state statute of limitation as construed by its highest court.

* * *" Appellant also cites Bruun v. Katz Drug Company, 359 Mo. 334, 221 S.W.2d 717 for the proposition that the statutory trustees of Plez Lewis were new parties and that the action was barred as to them since the period of limitations expired after the commencement of the action and before the trustees were actually brought into the case. In Bruun service had been originally obtained on the corporate defendant.

In such circumstances the provisions of the Civil Code relating to the dropping or addition of parties and the amendment of pleadings "may not be read apart from applicable statutes of limitations", Daiprai v. Moberly Fuel Transfer Co., 359 Mo. 789, 792, 223 S.W.2d 474, 476, and it is immaterial that the cause of action stated in the supplemental pleading is not a new cause of action but a continuing one merely bringing in new facts and circumstances accruing after the filing of the original petition. Brunn v. Katz Drug Co., 359 Mo. 334, 340, 221 S.W.2d 717, 718. Thus, in a suit to enforce a lien for sewer taxes instituted against the receivers of a railroad, it was held that the corporation could not be added as a party for the reason that at the time of its addition and as to it the applicable five year statute of limitations had run. Jennings Sewer Dist. v. Pitcairn, 238 Mo. App. 704, 187 S.W.2d 750.

Again assuming that the company's claim against these defendants accrued on December 18, 1930, the 5 year statute began to run both in favor of and against the trustees on that date. Had they been substituted as parties plaintiff after limitations had run, they could have successfully invoked the statute against any counterclaims of these defendants. See Bruun v. Katz Drug Co., 359 Mo. 334, 221 S.W.2d 717. In Hall v. Lavat, 301 Mo. 675, 257 S.W. 108, we said that while the trustees could cease to hold adversely before the 10 year statute had run, they could not destroy a title acquired by adverse possession for the statutory period.

In actions governed by Rule 55, the statute of limitations is an affirmative defense, Rule 55.08, but even in such actions the defense may be raised by a motion to dismiss where it appears on the face of the petition that plaintiff's cause of action is barred by the applicable statute of limitations. Bruun v. Katz Drug Co., 359 Mo. 334, 221 S.W.2d 717, 719[7] (1949); Carr v. Anding, 793 S.W.2d 148, 149[3] (Mo.App. 1990); Zero Mfg. Co. v. Husch, 743 S.W.2d 439, 441[1] (Mo.App. 1987). In actions governed by Rule 55, motions may be heard by a judge in chambers "without the attendance of the clerk or other court officials."

Donald L. Button was served on April 23, 1975. We find this case to fall squarely within the cases of Western Casualty and Surety Co. v. Lamping, 507 S.W.2d 38 (Mo.App. 1974); Elrod v. Lafayette Elevator Co., 379 S.W.2d 852 (Mo.App. 1974); Bruun v. Katz Drug Co. Inc., 359 Mo. 334, 221 S.W.2d 717 (1949); Daiprai v. Moberly Fuel Transfer Co., 359 Mo. 789, 223 S.W.2d 474 (1949). We do not find this a mere misnomer case as plaintiff contends.

This cannot be done. Elrod v. Lafayette Elevator Co., 379 S.W.2d 852 (Mo.App. 1964), is dispositive of the issues in this case. There, the court held, quoting from Bruun v. Katz Drug Co., Inc., 359 Mo. 334, 221 S.W.2d 717, 718 (Mo. 1949): "Where a plaintiff files an amended petition bringing into the case new defendants, and if between the time of the commencement of an action and the time when new defendants are brought into the case the period of limitation prescribed by law for such an action has expired, the new parties may plead the statute as a bar to their liability, although the defense may not be available to the original defendants."

The plaintiff's second amended petition was filed on December 5, 1960, which was more than five years after the happening of the accident alleged therein on October 3, 1955. No action was taken, nor was any asked for in connection with plaintiff's original petition, first amended petition, the summons, nor the return of the Sheriff. Thus, an amendment to plaintiff's second amended petition still leaves the plaintiff without the statute of limitations because such amended petition was filed after the statute had run. It was held in Bruun v. Katz Drug Company, Inc., et al., 359 Mo. 334, 221 S.W.2d 717, l.c. 718: "Where a plaintiff files an amended petition bringing into the case new defendants, and if between the time of the commencement of an action and the time when new defendants are brought into the case the period of limitation prescribed by law for such an action has expired, the new parties may plead the statute as a bar of their liability, although the defense may not be available to the original defendants, Jaicks v. Sullivan, 128 Mo. 177, 30 S.W. 890. It follows that appellant's contention that there is no new cause of action stated in the supplemental petition but a continuing cause of action bringing in facts and circumstances occurring after the filing of the original petition and therefore the running of the statute of limitations is tolled is without merit.

The same statute further provides that the trustees may be sued, and if Section 351.565 does not establish a period of two years within which creditors may sue a corporation whose charter has been forfeited by the Secretary of State, then it would appear that the general statutes of limitation govern such actions. See Bruun v. Katz Drug Co., 359 Mo. 334, 221 S.W.2d 717. In any case, creditors are not limited to one year, as intimated by counsel.