
    WHITE v. STATE.
    No. 25939.
    Dec. 17, 1935.
    Rehearing Denied Jan. 28, 1936.
    John W. Tillman, Pred A. Tillman, and W. J. Mahan, for plaintiff in error.
    S. T. Carman, C. K. Templeton, and J. C. Cornett, for defendant in error.
   WELCH, J.

The governing facts are quite simpar to the facts in Johnson v. State, 173 Okla. 508, 49 P. (2d) 141, and the rules of law announced in that decision are controlling in this case. Here the trial court erred in overruling defendant’s objection to the introduction of any evidence. This for the reason that the complaint showed by positive averment that the child was born much more than three years before the action was commenced, and there was no effort to. plead facts to toll the statute of limitations, or to take the cause out of the operation of the statute.

If the proper ruling had been made on defendant’s objection to the introduction of evidence, an amended complaint might have been proper, or there might have been some request to amend the complaint, but the cause of action as now alleged is barred by the statute of limitations.

The judgment is reversed and the cause remanded, with directions to the trial court to sustain defendant’s contentions that the cause of action as now alleged is so barred, without prejudice, however, to the right to make application to amend.

McNEILL, C.'j., and BAYLESS, PHELPS, and GIBSON, JJ., concur.  