The statute remains identical to its 1984 counterpart except that it provides that sections 2001 through 2027 are to be cited as the Oklahoma Pleading Code.Kile v. Cotner, 415 P.2d 961-62 (Okla. 1966); Title 12 O.S. 1981 § 97[ 12-97] provides: "An action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served on him or on a codefendant, who is a joint contractor or otherwise united in interest with him.
The Oklahoma courts have held that § 97 is an integral part of the statute of limitations. See Walker v. Armco Steel Corp., 452 F. Supp. 243, 245 (W.D.Okl. 1978); Kile v. Cotner, 415 P.2d 961 (Okl. 1966); Kelly-Goodfellow Shoe Co. v. Todd, 5 Okl. 360, 49 P. 53 (1897). The language of the section limits its application to "this article," meaning the chapter on limitations on actions.
It is apparent that the Legislature, by specifying a more narrow application of § 97 ("within the meaning of this article"), intended that it control over the more general § 151 for cases in which the running of the statute of limitations is at issue. In Kile v. Cotner, 415 P.2d 961 (Okla. 1966), this court stated, referring to § 97, "[t]he above section defines the time when an action is deemed commenced when the question of limitations is involved." In Cowley-Lanter Lumber Co. v. Dow, 150 Okla. 150, 300 P. 781 (1931), we held "that for certain purposes there are three different times or periods when action may be deemed to have commenced."
We cannot pass on its effect. National Zinc Co., Inc. v. Moody, Okla., 556 P.2d 268, 269 [1976]; Kile v. Cotner, Okla., 415 P.2d 961, 963 [1966]; and Greene v. Circle Ins. Co., Okla., 557 P.2d 422, 424 [1976]; Marks v. McCune, Okla., 370 P.2d 560, 562 [1962]. Nor can we here determine whether the terms of § 93, subdivs.
" See Kile v. Cotner, Okla., 415 P.2d 961 (1966); James v. Unknown Trustees, 203 Okla. 312, 220 P.2d 831, 20 A.L.R.2d 1077 (1950); Mead v. Vincent, 199 Okla. 508, 187 P.2d 994 (1948); First Nat. Bank of Harrah v. Wright, 192 Okla. 182, 135 P.2d 344 (1943); Liberty Nat. Bank of Weatherford v. Brommer, 172 Okla. 244, 45 P.2d 85 (1935); Wray v. Howard, 79 Okla. 223, 192 P. 584 (1920).Weaver v. Pryor Jeffersonian, Okla., 569 P.2d 967 (1977).
It should be treated the same as other statutes of limitation in this jurisdiction. Statute of limitations is an affirmative defense. It must be pled and cannot be raised initially on appeal. Gragg v. James, Okla., 452 P.2d 579 (1969); Kile v. Cotner, Okla., 415 P.2d 961 (1966). Rule 10 of the State Industrial Court, 85, Ch. 4, App., provides "(a)ll affirmative defense must be pled."
It is, however, similar in effect to 12 O.S. 1971 § 97[ 12-97] which has been interpreted as allowing subsequent attempts at proper service to be made although the time for such service extends beyond that time in which the statute allows for commencement of the action. Kile v. Cotner, 415 P.2d 961 (Okla. 1966). It is the opinion of this court that 12 O.S. 1971 § 154.5[ 12-154.5] was intended to provide for cases such as the instant case in which the ruling of the court on the validity of the initial summons is several months after the institution of the suit and after the statute of limitations has run.