Montana Attorney General Opinion 16-226

Opinion No. 226. Counties-Bonds-Statute of Limita- tions, Waiver of. HELD: Assuming that a county may avail itself of the statute of limi- tations on its outstanding bonds, it is not required to do so. January 10, 1936. Hon. Frank H. Johnson State Examiner The Capitol You have submitted the following: "Our advice has been requested as to whether two outstanding county bonds issued on September 1, 1881, that have been preseTlted recently to the COl,lnty Treasurer, can be paid. We are advised by the County Treas- urer that he has the money in the Bond Fund that was raised by taxa- tion to pay same. Your opinion will be appreciated." Although no facts are stated, we assume. without deciding from the foregoing that the statute of limita- tions has run on the bonds in ques- tion, and that what you wish to know is whether the county may neverthe- less pay them. Although a county may avail itself of the statute of limitations (37 C. J. 716, note 54), we do not find any statute or constitutional provision re- quiring it to do so. Statutes of limi- tations are not matters of substantive right, and are available only as de- fenses (37 C. J. 684.) The statute of limitations ordinarily does not oper- ate by its own force as a bar, but as a defense to be pleaded by the party invoking the benefit of its protection. If the statute is not pleaded in a prop- er time or manner, it is deemed to be waived (37 C. J. 1313-14.) In the absence of a constitutional or statu- tory provision requiring a county to avail itself of the statute of limita- tions, it is my opinion that the county may waive it if it so desires.