Section 516.370

Title XXXV CIVIL PROCEDURE AND LIMITATIONS

Chapter 516

Effective - 28 Aug 1939   

  516.370.  Limitation not to apply to setoffs, when. — When a defendant in action has interposed an answer, as a defense, setoff or counterclaim, upon which he would be entitled to reply in such action, the remedy upon which, at the time of the commencement of such action, was not barred by law, and such complaint is dismissed, or the action is discontinued, the time which intervened between the commencement and the termination of such action shall not be deemed a part of the time limited for the commencement of an action by the defendant, to recover for the cause of action so interposed as a defense, setoff or counterclaim.

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(RSMo 1939 § 1041)

Prior revisions: 1929 § 889; 1919 § 1344; 1909 § 1915

(1987) With the exception of what might be considered to be purely defensive pleading such as a setoff or recoupment, a counterclaim which seeks affirmative relief by asserting a new cause of action like a medical malpractice, although arising out of the same occurrence and although not barred at the commencement of the plaintiff's action, is barred if the counterclaim is filed at a time when it would have been barred as an original action. Northwest Radiation Oncology v. Goodstal, 735 S.W.2d 762 (Mo.App.E.D.).