Vyse v. Richards ( 1919 )

Fellows, J.

(after stating the facts). In this court it is urged on behalf of the defendants, and the questions raised by the motion to dismiss are: (1) that the cause of action is barred by the statute of limitations; and (2) that the decree in the case brought by the administrator of the estate of Charles L. Fish, deceased, against these defendants and Tillie A. Vyse is res adjudicata. Plaintiffs insist that these questions may not be raised on this record by motion to dismiss.

By section 4, chapter 14, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12456), demurrers, pleas in abatement, and pleas to the jurisdiction, are abolished and a motion to dismiss is substituted. In the recent case of Pagenkoff v. Insurance Co., 197 Mich. 166, this court had this section of the statute under consideration. We there pointed out that the motion to dismiss now performs the function of a demurrer, a.plea in abatement, and a plea to the jurisdiction, but that it does not perform the function of a plea in bar, and that defenses which formerly required a plea in bar cannot be made under the summary proceeding of a motion to dismiss; and in Gunn v. Gunn, 205 Mich. 198, we declined to consider on a motion to dismiss in the nature of a demurrer anything but the allegations of the bill itself. In the instant case the motion to dismiss performs the function of a demurrer under the former practice.

Under the repeated decisions of this court the statute of limitations must be pleaded and the defense cannot be raised by demurrer. Whitworth v. Pelton, 81 Mich. 98; Shank v. Woodworth, 111 Mich. 642; Renackowsky v. Board of Water Com’rs, 122 Mich. 613; First National Bank v. Steel, 136 Mich. 588; Township of Forest v. American Bonding Co., 180 Mich. 90. The defense is a bar to the action and should be so pleaded in order to be available. Likewise this court has also held that the defense of former adjudication, the question of res adjudícala must be pleaded in bar and cannot be raised by motion to dismiss. Attorney General v. Railway Co., 149 Mich. 122, citing Briggs v. Milburn, 40 Mich. 512. See, also, Pagenkoff v. Insurance Co., supra; Porter v. Leache, 56 Mich. 40.

The chancellor was right in denying defendants’ motion to dismiss. His order is affirmed, with costs to the plaintiffs.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.