dissenting:
I dissent, and base my action upon the order of thd district court sustaining the plaintiff’s demurrer to the affirmative defense set up in the answer pleading the failure of plaintiff to bring suit within the time prescribed by statute after he had been notified that his claim against the estate in question had been rejected.
The demurrer to plaintiff’s complaint filed by the defendant, as stated in the majority opinion, was a general demurrer, and was not upon the ground that it appeared from the complaint that the action was barred by the statute; nor could such a demurrer have been sustained had it been filed, for the reason that the complaint does not allege the date of his having been notified of the rej ection of his claim, nor otherwise show that the action was not brought within the time prescribed by the statute. The statute, providing that an action upon a rejected claim must be filed within thirty days after notice of its rejection is given the claimant, is in the nature of a statute of limitations, and the rules of pleading applying to statutes of limitations generally control. It is a well-established rule that, where the complaint does not show upon its face that the action is barred by the statute of limitations, the defense of the statute can *356be raised only by answer. 25 Cyc. 1399; 21 R. C. L. 536. The plea of the statute must be urged upon the first opportunity, and if not so urged is waived. 25 Cyc. 1401.
I think the court erred in sustaining the demurrer to the affirmative defense mentioned, for which reason the judgment should be reversed.