Section 516.120

Title XXXV CIVIL PROCEDURE AND LIMITATIONS

Chapter 516

Effective - 28 Aug 1939   

  516.120.  What actions within five years. — Within five years:

  (1)  All actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110, and except upon judgments or decrees of a court of record, and except where a different time is herein limited;

  (2)  An action upon a liability created by a statute other than a penalty or forfeiture;

  (3)  An action for trespass on real estate;

  (4)  An action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property, or for any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated;

  (5)  An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.

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(RSMo 1939 § 1014)

Prior revisions: 1929 § 862; 1919 § 1317; 1909 § 1889

(1967) Five year statute of limitations applies to action by city to collect delinquent city earnings tax and the statute begins running at the time the grace period for the payment of the taxes due expires whether or not a return was filed as the tax became delinquent at that time. State v. Robertson (A.), 417 S.W.2d 699.

(1967) In action for broker's commission the statute of limitation begins to run when payment on which commission is based is paid, not when last service is rendered by broker.  Boyd v. Margolin (Mo.), 421 S.W.2d 761.

(1968) The filing of a petition and the issuance of summons halt the running of a statute of limitations even if the summons is not served until after the statute would have run out if the plaintiff makes a good faith attempt to obtain service before the limitation period has run its course. Emanuel v. Richards (A.), 426 S.W.2d 716.

(1969) An application by a surviving spouse for a year's allowance from the estate of decedent is not an "action" within the meaning of this section but is a special proceeding, and limitation period of section did not apply. In re Estate of Guthland (A.), 438 S.W.2d 12.

(1970) The concealment of a cause of action founded upon fraud does not toll the period established by subdivision (5) of this section. Anderson v. Dyer (A.), 456 S.W.2d 808.

(1970) The period of limitation under subdivision (5) of this section accrues the moment the right to commence the action comes into existence, but is deferred until the actual discovery of the fraud at any time within ten years of its perpetration. If the fraud was not discovered or discoverable during the ten-year hiatus, the cause of action will be deemed to have accrued at the termination of such period and the statute of limitations will commence to run at that time, thereby permitting a maximum of fifteen years for commencement of the suit.  Anderson v. Dyer (A.), 456 S.W.2d 808.

(1974) Failure to request an instruction on the statute of limitations constitutes an abandonment of that defense. Yeager v. Wittels (A.), 517 S.W.2d 457.

(1975) An action to collect sum allegedly due for holiday pay for firemen where such claim was based on a city ordinance is a claim on an "obligation" and must be brought within five years. Barberi v. University City (A.), 518 S.W.2d 457.

(1976) Action to recover liquidated damages for breach of a covenant in a lease not to assign or transfer interest in the lease was not based upon a writing for the payment of money but was based on contract and therefore was governed by five-year statute of limitations, section 516.120, and not by section 516.110. Bangert v. Boise Cascade Corp. (C.A. Mo.), 527 F.2d 902.

(1977) Held, in a continuing trespass to real estate recovery is limited to the five-year period immediately preceding institution of the action. Cacioppo v. Southwestern Bell Telephone Co., (A.), 550 S.W.2d 919.

(1985) Five-year limitation period held applicable to civil actions under the Racketeer Influenced Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, commenced when plaintiff had reasonable ground to suspect fraud. Aetna Casualty & Surety Co. v. Current Components, Inc., 616 F.Supp. 862 (D.C.Mo.).

(1993) Five year statute of limitations applies to claims for breach of fiduciary duty.  Claims for relief based on fraud accrue, not when resulting damage is capable of being ascertained, but when facts constituting fraud are discovered.  Koester v. American Republic Investments, Inc., 11 F.3d 818 (8th Cir.).

(1993) Statute of limitations for actions for alienation of affections is governed by this section for any other injury to person or rights of another; therefore, statute of limitations is five years.  Miller v. Neill, 867 S.W.2d 523 (Mo. App. E.D.).

(2001) Subdivision (4) of section applies to inverse condemnation actions seeking compensation for damage to personal property. Shade v. Missouri Highway and Transportation Commission, 69 S.W.3d 503 (Mo.App.W.D.).

(2005) Replevin action with five-year limitations period applies for return of seized weapons legally possessed by owner and not used in commission of crime.  Elam v. Dawson, 156 S.W.3d 807 (Mo.App.W.D.).