On motion for rehearing:
Opinion by
Philips, P. J.The appellant insists in the motion for rehearing that,, while it is true it did not raise the question of the statute of limitation in the motion to dismiss the action, nor otherwise interpose this defense prior to the judgment of affirmance, yet, it did raise this question in the motion, in arrest of judgment, and that this was sufficient to-present that issue on this appeal. The motion in arrest, is as follows:.
“Now comes the defendant and moves that the court-do arrest the judgment herein, and for causé says that upon the record said judgment is erroneous.
“That the judgment is not responsive to- the issues-made by the pleadings.
“That the court had no jurisdiction of the person of this defendant.
“That the petition failed to state facts sufficient to constitute a cause of action. That the petition alleged-facts showing that plaintiff had no cause of action.
“That the court erred in refusing to- consider defend-, ant’s motion to dismiss for want of service of summons.”
Prom which it is apparent that the only specification under which the appellant can possibly claim the question of the statute of limitation was raised is-: “ that the-petition failed to state facts- sufficient to- constitute a. cause of action.”
*142This was not sufficient. . This question, we think, is definitely settled against appellant’s contention in State ex rel. Matney v. Spencer (79 Mo. 314). The Supreme Sourt there hold, that even where the statute creates an absolute bar to the cause of action, and it appears on the face of the petition that the limitation has run, the defendant cannot raise this question by general demurrer. He must raise it, if on demurrer, by special demurrer, specifying that particular defect. It must follow, logically, that the motion in arrest, even if it were conceded that this defect could be reached through such a motion, being general and not specific, was not sufficient to raise this issue.
We reiterate what is stated in the opinion, that the rule in this state is, that a party can only avail himself of the benefit of the statute of limitation as a defence, in this character of action, by specially pleading it in some form or other at the trial; and if he fails so to do he is deemed to have waived the privilege. This being a suit instituted in a justice’s court, and there being no answer required, the defendant, if he would take advantage of the lapse of time should have duly prosecuted his appeal, and raised the bar by motion or instruction. But he did neither. And at no time nor at any stage of the proceedings in the lower court did he present this question for the determination of the trial court. Its appeal is utterly without merit.
All the judges concurring,the motion for rehearing is denied.