W. T. Raleigh Co. v. Fortenberry

97 So. 722, 133 Miss. 467, 1923 Miss. LEXIS 144

Opinion

Cook, J.,

delivered the opinion of the court.

The appellant, W. T. Raleigh Company, an Illinois corporation, filed its declaration in the circuit court of Neoba county against H. L. Fortenberry for a balance of the purchase price of certain goods, wares, and merchandise theretofore sold and delivered to .the defendant, For-tenberry, in pursuance of a written contract, which was made an exhibit to the declaration, and also against E. S. Richardson, W. D. Germany, and H. D. Bassett,, ap-pellees, as guarantors of the said Fortenberry-under the terms of a written contract of guaranty which was also made an exhibit to the declaration. To this declaration the appellees filed a demurrer setting up, as the sole ground of demurrer, the bar of the statute of limitations. This demurrer was sustained and judgment entered dismissing the cause of action, and from this judgment this appeal was prosecuted.

It is settled by numerous decisions of this court that, in an action at law, the bar of the statute of limitations cannot be availed of by a demurrer to the declaration, even though the cause of action stated may appear to.be barred. The statute of limitations “must be pleaded, so that the plaintiff may, if he can, avoid the bar-by replying facts which prevent it.” Hines v. Potts, 56 Miss. 346; Y. & M. V. R. R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 834, 42 L. R. A. (N. S.) 1172, Ann. Cas. 1914C, 968; Jordan v. Holmes, 102 Miss. 487, 59 So. 809; Y. & M. V. R. R. Co. v. McGee-Dean Co., 115 Miss. 282, 76 So. 264.

It is unnecessary to now decide any of the other questions argued by counsel for appellant, and, for the error in sustaining the demurrer, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded. '