Berry v. Dagley
Decision Date | 11 September 1972 |
Docket Number | No. 56093,No. 2,56093,2 |
Parties | Faye T. BERRY, Appellant, v. Violet Holt DAGLEY, Executrix of the Estate of Bessie Kathryn Grace, Respondent |
Court | Missouri Supreme Court |
Roger Guy Burnett, Liberty, for appellant.
L. M. Bywaters, Liberty, for respondent.
Plaintiff's action is to impose an equitable lien in the amount of $20,800 on assets in a decedent's estate of which defendant is executrix. Plaintiff appeals from the trial court's order sustaining defendant's motion to dismiss.
This court has jurisdiction because the amount in controversy, exclusive of costs, exceeds $15,000. Plaintiff filed Notice of Appeal to this court on Sept. 2, 1970. An amendment to § 477.040 of the Missouri statutes 1 raised our jurisdictional amount from $15,000 to $30,000, but this amendment did not become effective until Sept. 11, 1970, and by the terms of the amending Act this court continued to have exclusive jurisdiction of cases where the amount in dispute exceeded $15,000 and notice of appeal was filed in the trial court before the effective date of the amendment. Laws 1969, Third Extra Session, Page 110 (H.B.34).
In the petition, which was filed March 19, 1970, it is alleged:
'* * *
* * *
Defendant, by her motion in the trial court, sought to dismiss for the reasons:
Since we hold that the action is barred by the statute of limitations we find it unnecessary to pass upon the question of stating a claim except as related to the statute of limitations.
Plaintiff's (appellant's) first point relating to the statute of limitations is that the statute of limitations cannot be raised by motion to dismiss. It is true, as stated by plaintiff, that S.Ct. Rule 55.10, V.A.M.R., provides that, 'In pleading to a preceding pleading, a party shall set forth affirmatively * * * statute of limitations * * *.'
However, as stated in DeVault v. Truman, Mo., 354 Mo. 1193, 194 S.W.2d 29, 32:
'If it clearly appears from the face of the petition that appellant's cause of action, if any, is barred by the applicable statute of limitations, the motion to dismiss was properly sustained.'
Thus the question is herein presented: Does it clearly appear from the face of the petition that this action is barred by the applicable statute of limitations?
Plaintiff contends that the special statute of limitations, § 473.360, covering probate proceedings, is not a bar. Plaintiff is not seeking to establish this claim through the probate court and defendant does not assert that this special statute is a bar.
Although the trial court did not make reference to any specific general statute of limitations both plaintiff and defendant make reference to § 516.120. This statute, and Par. (5) in particular, relating to actions for relief on the ground of fraud, is the most liberal to plaintiff's cause.
Section 516.120 provides for a five-year limitation upon actions upon contracts not in writing and for the recovery of specific personal property or for any injury to the person or rights of another not arising on contract and not otherwise enumerated.
Par. (5) of this statute:
'An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accured until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.'
The history and interpretation of aforementioned statute is set out in Anderson v. Dyer, Mo.App., 456 S.W.2d 808. A maximum of ten years is given for the discovery of the fraud and suit must be filed within five years after the discovery of the fraud or, in any event, within fifteen years after the commission of the fraud.
As stated in respondent's brief (p. 6):
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