On Motion to Rehear
It is vigorously contended by the defendant that the opinion of the majority in this case is an unconstitutional application of the law in that a tort action based on fraud and seeking punitive damages is a separate claim, even though based on the same transaction, from the claim originally set out in this petition and which was based on implied contract for money had and received. With this latter statement we readily agree, but under Code Ann. § 81A-115(c) a new claim referring to the same fact transaction, unless it violates Constitutional inhibitions, may be added by amendment and when so added will relate back to the date of the original pleading. The defendant further contends that since the transaction complained of took place on-January 22, 1959, and was subject to a four-year statute of limitation insofar as the'defendant’s alleged tortious misconduct was- concerned, this right of action expired in 1963, over two years prior to the effective date of the Civil Practice Act. ’ Prior thereto, of course, no such amendment - could have been filed because it would have constituted a new cause of action. That there is merit in this contention is shown by Dixie Construction Co. of Ga. v. Williams, 95 Ga. App. 767, 770 (98 SE2d 582), which states: “Statutes of limitation look only to remedy and not to substantive rights, and, unless the cause of action is barred at the time of the passage of the act extending the statute of limitation, it will be effective.” (Emphasis sup*343plied). To the same effect see Valley town Tp. v. Women’s Catholic Order of Foresters, 115 F2d 459; Siefkin v. Siefkin, 92 P2d 1005; Peninsula Produce Exchange v. New York P. & N. R. Co., 152 Md. 594 (137 A 350); Haase v. Sawicki, 20 Wis. 2d 308 (121 NW2d 876); Campbell v. Holt, 115 U. S. 620 (6 SC 209, 29 LE 483). It is also true that a plea of the statute of limitation is a plea in bar of recovery. Barnwell v. Hanson, 80 Ga. App. 738, 745 (57 SE2d 348).
A plaintiff may not wait until the new cause of action attempted to be set up in the amendment is barred, and thereafter contend that the amendment relates back to the filing of the original action. Addington v. Ohio Southern Express, 118 Ga. App. 770 (165 SE2d 658). The difficulty with the defendant’s position here is that the defense of statute of limitation must be specially pleaded. Code Ann. § 81A-108(c). The defendant’s objection to the allowance of the plaintiff’s amendment did not raise the issue of statute of limitation, nor are we passing on such issue. It was not before the trial court at the time and is not before us now.
On Motion to Rehear.