dissenting:
I dissent from the result reached by the majority for the reasons expressed in my special concurring opinion in Dumas v. Ropp, 98 Idaho 61, 558 P.2d 632 (1977), that trial courts should not consider the defense of statute of limitations based upon a Rule 12(b)(6) motion to dismiss for failure to state a claim. See also Duff v. Draper, 96 Idaho 299, 527 P.2d 1257 (1974). Had the defendants been required to plead affirmatively the defense of statute of limitations, as I.R.C.P. 8(c) specifically requires, the applicability of a four year statute for malicious prosecution, rather than a two year statute for personal injury, would have become apparent, and the plaintiff could have easily amended his complaint to insert the magic word “malice” which even the majority recognizes would have been sufficient to satisfy the pleading requirements for a cause of action for malicious prosecution.
Speed in disposing of cases is a virtue, only if it is not accomplished at the expense of justice. This case represents another example of how a plaintiff, who may have had a good claim for relief, finds himself deprived of the chance to prove the merits of his claim because of our failure to require the clear mandate of I.R.C.P. 8(c) to be followed.