McGruder v. B. & L. Const. Co., Inc.

• Decision Date: 24 October 1974
• Court: Alabama Supreme Court
• Parties: Ella C. McGRUDER v. B & L CONSTRUCTION COMPANY, INC., et al., etc. SC 861.

Page 103

303 So.2d 103

293 Ala. 354

Ella C. McGRUDER v. B & L CONSTRUCTION COMPANY, INC., et al., etc.

SC 861.

Supreme Court of Alabama.

Oct. 24, 1974.

Rehearing Denied Dec. 5, 1974.

J. Wm. Thomason, Bessemer, for appellant.

Dewayne N. Morris, Birmingham, for appellees M. E. Brown and B & L Construction Co.

H. Powell Lipscomb, III, Bessemer, for appellee Helen R. Justice.

MERRILL, Justice.

This appeal is from a judgment dismissing the complaint because 'the statute of limitations had run.'

Plaintiff-appellant filed her suit on October 18, 1973, charging that the defendants, M. E. Brown and B & L Construction Company, had breached a contract to repair her house in that the repairs were not done in a workmanlike manner; that she and her deceased husband had executed a note and mortgage to secure the payment for the work in the amount of $3,200.00; that she had paid the monthly installments of $38.00 from August 19, 1967, the date of the contract and the mortgage, until May 1, 1973. The complaint also charged fraud. The contract and the mortgage were made exhibits to the complaint.

The defendants, Brown and B & L Construction Co., filed a motion to dismiss, one of the grounds being that the 'complaint shows on its face that the contract allegedly entered into was made on August 19, 1967, and the lawsuit was not filed within six years from the date thereof, and this suit is barred by the statute of limitations. (Title 7, Section 21, Code of Alabama).' The motion was granted after a hearing and this appeal followed.

Actions founded on promises in writing not under seal must be commenced within six years, Tit. 7, § 21, Code 1940. Six years from August 19, 1967 would be August 19, 1973. The suit was not filed until October 18, 1973. These facts were shown on the face of the complaint.

In J. M. Blythe Motor Lines Corporation v. Blalock, 310 F.2d 77 (5th Cir. 1962), the court said in part:

'* * * The appellee contends, not only that the defense raised by the answer was not proved, but that the limitations issue could not be brought before the court on a motion for judgment on the pleadings. Here again state court precedents are relied upon. Under the federal procedure the defense of limitations may be raised by motion to dismiss where the complaint affirmatively shows that the claim is barred. Herron v. Herron, 5th Cir. 1958, 255 F.2d 589. So too as to a motion for judgment on the pleadings, 2 Moore's Federal Practice 2269, Par. 12.15, n. 9. A motion for a judgment on the pleadings must be sustained where the undisputed facts appearing in the pleadings, supplemented by any facts of which the court will take judicial notice, show that no relief can be granted. Moore, supra, Par. 12.15, n. 9. Stanton v. Larsh, 5th Cir. 1957, 239 F.2d 104.

'There is not present in this case any fact question involving limitation. The complaint alleges the date when the cause of action accrued. The court record shows when the action was commenced. The judicially noticed statutes fixed the time for bringing the action. It was not brought within that time. Judgment should have been entered for the defendants. In order to reach this result the judgment of the district court is reversed and the cause is remanded with directions to enter a judgment for the appellant.'

Here, the gravamen of the charge was breach of a contract. The monthly installments provided for in the contract were paid by plaintiff for over five years. Under the federal decisions, the trial court correctly dismissed the suit as barred by the statute of limitations after the motion to dismiss for that reason had been filed and heard. This suit was filed subsequent to the effective date of ARCP. The applicable rule is ARCP 12(b)(6), which provides that a motion to dismiss may, at the option of the pleader, be made for '(6) failure to state a claim upon which relief can be granted.'

In Wright & Miller, Federal Practice and Procedure: Civil § 1357, p. 608, the following appears:

'A complaint showing that the statute of limitations has run on the claim is the most common situation in which the affirmative defense appears on the face of the pleading. Since Rule 9(f) makes averments of time material, the inclusion of dates in the complaint indicating that the action is untimely renders it subject to dismissal for failure to state a claim. * * *'

To the same effect is 2 Moore, Fed.Practice, §...