
    ATCHISON & KELLER, Inc., v. TAYLOR.
    No. 477.
    Municipal Court of Appeals for the District of Columbia.
    Feb. 20, 1947.
    Leroy A. Brill, of Washington, D. C. (Mark P. Friedlander, of Washington, D. C., on the brief), for appellant.
    A. M. Goldstein, of 'Washington, D. C, for appellee.
    Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.
    
      
       Sanger v. Nightingale, 122 U.S. 176, 7 S.Ct. 1109, 30 L.Ed. 1105.
    
   CAYTON, Chief Judge.

Defendant appeals from a judgment of $438 rendered against it on a claim for stokers and equipment furnished and installed by plaintiff. The single error assigned relates to the alleged failure of the trial court to rule that plaintiff’s claim was barred by limitations. Code 1940, § 12— 201. The point was not raised or suggested during the trial. Nor was it made a ground of the ensuing motion for new trial. It was asserted as a defense, admittedly for the first time, in a brief submitted to the trial judge in support of the motion for new trial.

We must hold that the defense of limitations was advanced too late. Such defense is a personal privilege of which a party may avail himself or not as he pleases. It is an affirmative defense, which does not operate of its own force, and cannot be availed of by a party who fails in due time and in proper form to invoke its protection.

It is true that in this case no formal written plea of limitations was required. It being a Class B action the defendant was not called upon to file an answer or other pleading. Civil Rules, Municipal Court, Part II, Rule 2. (This rule states certain exceptions which are not here involved.) The case went to trial on plaintiff’s informal bill of particulars. But that does not mean that defendant was relieved of the duty of making its defenses known to the court. As we can tell from the stenographic transcript, the case was vigorously defended. Yet there was never a mention of the défense of limitations. Whether the omission was intentional or merely inadvertent, there is no doubt that it amounted to a waiver of the defense. See Morris v. Breaker, D.C.Mun.App., 38 A.2d 632, where in a landlor.d-tenant case we held that failure to give notice to quit was not an automatic defense and was waived by not being asserted at the trial.

It is also significant that in this case the defense was not referred to in the motion for new trial.. But even if the defense of limitations had been made in that motion it would probably have been late. Counsel, as we have once said, “cannot be permitted to make the motion for new trial a vehicle for asserting objections retroactively or for grounding an appeal on a theory never presented during the trial.” District Hauling & Construction Co. v. Argerakis, D.C.Mun.App., 34 A.2d 31, 32. That being so there would be even less justification for holding that the trial judge was wrong in rejecting the defense, when it came a month or so after the trial, not in the motion itself but in the brief which followed.

The rule we are following is neither harsh nor technical. On the contrary, it is based upon fair play and designed to accomplish orderly procedure and assure decisions upon the actual issues. Thus, by requiring a defendant who relies upon the defense of limitations to reveal that defense to the court and plaintiff, the plaintiff has an opportunity to come forward with proof of circumstances which might loll the statute, such as new promise, part payment, infancy or absence of defendant from jurisdiction. But when the defense is> not presented, the .plaintiff obviously has neither opportunity nor duty to meet it. Especially is this true when as here the bill of particulars on its face showed payments within the statutory period, and plaintiff had no reason to anticipate that the defense of limitations might be raised.

As a practical matter the error assigned does not relate to the trial itself or to the finding, but is directed to the refusal to grant a new trial. Under the circumstances, the action of the trial court was clearly in the realm of discretion.

Affirmed. 
      
       Apuzzo v. Hoer, 125 Conn. 196, 4 A. 24 424; Rye v. Phillips, 203 Minn. 567, 282 N.W. 459, 119 A.L.R. 1120.
     
      
      Retzer v. Wood, 109 U.S. 185, 3 S.Ct. 164, 27 L.Ed. 900.
     