This is аn appeal from the dismissal of a counterclaim made final pursuant to a Rule 54(b), A.R.Civ.P., order. On May 23, 1980, the City of Prichard sued Marvin W. Sumlin Construction Company, Inc., for breach of contract. Sumlin received service on May 30 and answered with a general denial on Junе 23, 1980. On February 2, 1982, Sumlin filed a motion for leave to amend its answer. The court granted this motion on February 26, 1982. On that same date Sumlin filed its amendment which added a counterclaim for breach of the same contract which was the subject of the City of Prichard’s complaint.
On October 5, 1983, the City of Prichard filed a motion to dismiss the counterclaim “for failure to filе a claim as required by” Code 1975, § 11-47-23.
At any rate, the record reflects that the parties continued to argue over whether the counterclaim should be dismissed. Thе case action summary continues with the following two entries:
“October 28, 1983 — Moot Order on above
motion set aside and defendants’ motion to set aside order of October 17, 1983 dismissing the counterclaim here*373 by reinstated and Taken Under Submission.
“Dеcember 12, 1983—Motion to set aside order dismissing counterclaim hereby DENIED.”
Sumlin filed a motion for the court to enter final judgment pursuant to Rule 54(b), A.R.Civ.P., “upon its order dismissing the Defendant’s counter-claim.” The court obliged and entered final judgment “on dismissal of counterclaim.” Sumlin aрpeals from that order and from the denial of its motion to set aside the dismissal of its сounterclaim.
Sumlin argues that the counterclaim should relate back under the prоvisions of Rule 13(c), A.R.Civ.P., and thus be regarded as having been timely filed. The City of Prichard argues that no claim for payment was filed with the clerk as required by § 11-47-23, and thus Sumlin has not met the statutory prerequisite for filing its counterclaim. The City admits that this Court has relaxed this rule in tort actions, allоwing a complaint to serve as the claim for payment in Hamilton v. City of Anniston,
The City’s' аrgument passes over the fact that Rule 13(c), A.R.Civ.P., provides that “All counterclaims other than those maturing or acquired after pleading shall relate back to the time the original plaintiff’s сlaim arose.” (Emphasis added.) Thus, Sumlin’s counterclaim should be considered as having been filed well before the expiration of the two-year limitations period of § 11-47-23. The City made no showing of any prejudice because of Sumlin’s delay in amending its answer to add the counterclaim. Indeed, the City delayed just as long in filing its motion to dismiss the counterclaim.
Thе filing of a complaint has long been held sufficient claim for payment to satisfy the nоnclaim provisions of § 11-47-23. See the cases cited above and others included in the annotations to the statute. In tort cases, a city may be able to raise the affirmative defense of failure to file the sworn statement required by § 11-47-192. No such statement is rеquired in contract cases, so the practice of allowing a complaint to serve as a statement of claim in such cases is even more reasonable— particularly where, as here, the claim comes as a counterclаim to a complaint filed by the City.
For the foregoing reasons, we hold that the counterclaim was properly allowed in the first instance and the court erred in dismissing it. The judgment is rеversed and the cause remanded.
REVERSED AND REMANDED.
Notes
. "All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the сlerk for payment within two years from the accrual of said claim or shall be barrеd. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.”