122 Ga. 4 | Ga. | 1905
The suit was for damages for trespass in cutting . timber. The petition set forth a cause of action. But the special demurrer on the ground that the date of trespass was not alleged should have been sustained and the case dismissed, unless the defect were cured. It is true, as contended by the plaintiff, that the statute of limitations is a defense which may be taken advantage of by plea. But where it appears on the face of the petition that the cause of action is barred, the defendant may take advantage thereof by demurrer; the better practice being for the demurrer itself to set forth in terms this special objection. Coney v. Horne, 93 Ga. 725. The rules of pleading have been adopted partly with a view of saving both the parties and the public the trouble and expense of an unnecessary trial. A defendant is not bound to avail himself of the benefit of the statute of limitations. But if he intends to do so, it would be a useless consumption of
■ In the present case the defendant in due time and form made the objection. The defect was not cured by amendment. The demurrer was overruled, and the defendant forced to answer such defective petition. Under the rule laid down in Western Union Telegraph Company v. Griffith, 111 Ga. 565, a new trial necessarily results. Judgment reversed.