King v. Southeastern Greyhound Lines

OPINION

PER CURIAM:

Appeal on questions of law.

The appeal is from a judgment of the Court of Common Pleas sustaining motions to quash service upon the defendants and dismissing the petition and amended petition. There is no bill of exceptions, and we can not consider the facts upon which the trial court granted the motions to quash. If the court was correct in granting the motions to quash, it was wrong in dismissing the petitions.

If the motions raised a question under which it could dismiss the petitions, then the parties were in court and the motions to quash should have been overruled. The question of the statute of limitations is suggested in the argument and brief. This is a matter of affirmative defense, which must be made in the case and cannot be considered upon a motion to quash..

Our conclusion is, that the trial court erred in dismissing the petitions and the judgment is reversed and the cause re-, manded with instructions to reinstate the petitions and for further proceedings according to law.

BOSS, PJ., HAMILTON and MATTHEWS, JJ., concur.