(dissenting).
I cannot concur in the conclusion that defendant, under the particular facts here, by failing to assert the statute of limitations in its first responsive pleading, — the answer, should be precluded from asserting it by amendment. At the time of the answer, defendant apparently was a protected pledgee under Title 16-3, U.C.A.19S3, since there was no apparent reason to believe the endorsements on the certificates were forged. Had they not been, there seems to be no reason why the bank could not have relied on the theory it was a protected pledgee, in which event there would have been no need to assert the statute. •Such theory actually was nurtured by plaintiff herself when she stated in her deposition that she thought she had endorsed the documents. Had she taken the opposite position at that juncture, it is not unreasonable to assume that the bank immediately, and before • the trial, would have sought leave to amend and the trial court no doubt would have permitted the amendment. Therefore, the plaintiff’s own words seem to have lulled the defendant into a false sense of security.
The trial actually was continued to determine if what plaintiff had said in her deposition were true. Had it proved to have been true, I believe Title 16-3 supra, would have protected defendant against failure to plead a limitations statute. Upon discovery of plaintiff’s inaccurate state*211ments, the defendant promptly asked leave to amend and assert the statute.
Under such circumstances, and under our rules, I believe defendant most certainly should have been permitted to amend and to assert a defense which is as meritorious as any other, regardless of the implication in the main opinion that it is a defense that is frowned upon, when the majority opinion suggests that the statute of limitations in some cases “prevents a recovery of a just claim.” Statutes of limitation generally do just that, but they are nonetheless legitimate and should be treated no differently than other defenses, where a court may exercise discretion in permitting their assertion by amendment.