No. 14910 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

LINDA SUTHERLAND AND BRIAN 

ANDREW SUTHERLAND, 

Plaintiffs and Appellants, 

CHARLES HURIN, Jr., 

Defendant and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellants: 

Dzivi, Conklin & Nybo, Great Falls, Montana 

Richard Dzivi argued and Suzie Rebeck argued, Great 

Falls, Montana 

For Respondent: 

Smith, Baillie and Walsh, Great Falls, Montana 

Dennis Clark argued, Great Falls, Montana 

Filed: FEB 6 - 1980 

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Submitted: January 15, 1980 

Decided: FEB 6- 1989 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Linda and Brian Sutherland appeal from an order of 

the Cascade County District Court, dismissing with prejudice 

their paternity suit. 

Linda Sutherland (hereafter mother) is the natural mother 

of Brian Andrew Sutherland (hereafter child) who was born out 

of wedlock on April 7, 1972. Mother and child brought this 

action on May 24, 1978 against Charles Hurin, Jr., in order 

to establish a father-child relationship between Hurin and 

the child and to also require Hurin to support the child. 

As an affirmative defense, Hurin contended the cause 

was barred by the statute of limitations which he asserted 

had run prior to July 1, 1975, the effective date of the 

Uniform Parentage Act. The District Court requested the 

issue be briefed and argued prior to trial. After briefing 

and argument, the District Court entered its order dismissing 

the claim of the mother and child on the basis that section 

40-6-108, MCA, the statute of limitations in the Uniform 

Parentage Act, revived a previously barred claim. 

It is from this determination that mother and child 

appeal, setting forth two issues for review: 

(1) Prior to the adoption of the Uniform Parentage 

Act, did section 27-2-401(1), MCA, apply to toll any statute 

of limitation barring an illegitimate minor's right to bring 

a paternity cause of action? 

(2) Is it a denial of an illegitimate minor's right to 

Equal Protection under the Fourteenth Amendment to the 

United States Constitution to bar him from bringing a paternity 

action, due to the running of the statute of limitations 

during his minority? 
We find the first issue dispositive of this case and reverse 

the decision of the District Court. 

At the time the present action commenced, the subsection 

of the statute of limitations in the Uniform Parentage Act 

establishing a time limitation on commencement o'f paternity 

actions when the father-child relationship is not presumed by 

statute, states: 

". . . An action to determine the existence or 

nonexistence of the father and child relationship as to a child who has no presumed father 

under 40-6-105 may not be brought later than 3 

years after the birth of the child or later than 

(3) years after the effective date of this act, 

[July 1, 19781 whichever is later. . . Section . 61-308, R.C.M. 1947, now sectio40-6-108(3), MCA. 

The District Court determined that this section "revived" 

a claim which had previously been barred by the running of 

the statute of limitations. We disagree. 

Prior to the enactment of the Uniform Parentage Act 

on July 1, 1975, there existed no specific statute of limitations 

relating to paternity actions. Although the District Court 

does not designate which statute of limitations under our 

codes had previously foreclosed a paternity action in the 

present case, we find that it makes no difference to our 

decision in this case. 

What does matter in this case is the failure of 

Hurin to recognize the statute which tolls the running 

of time for limitations. The pertinent statute is section 

27-2-401(1), MCA, which provides: 

"When person entitled to bring action is under 

a disability. (1) 1fa person entitled to 

bring an action mentioned in part 2,. . . is, 

at the time the cause of action accrues,. . . a minor, the time of such disability is not a 

part of the time limited for commencing the action. 

However, the time so limited cannot be extended 

more than 5 years by any such disability except 

minority or, in any case, more than 1 year after 

the disability ceases." 
In effect this statute created a 19 year statute of limitations 

in which a child could have instituted filiation proceedings 

prior to July 1, 1975, the effective date of section 40-6- 

108 (3), MCA. 

As a result, the District Court erred in dismissing 

appellant's paternity action on the basis that section 40-6- 

108(3), MCA, improperly "revived" a previously barred claim. 

The child's action was never barred by the running of a 

statute of limitations. Therefore, his cause was alive and 

filed within the permissible time. 

Hurin poses a further argument asserting that this 

first issue was not presented to the District Court and 

cannot be considered by this Court on appeal. We find that 

this argument also fails. The record discloses that this 

issue was raised in appellant's supplemental memorandum 

which was filed with the District Court and as such is part 

of the record on this appeal. Rule 9, M.R.App.Civ.P. 

As to there being a cause of action on behalf of 

the mother, this Court recognizes that authority does 

exist on which a mother may seek recovery in the absence 

of a specific statute of limitation on paternity actions. 

See generally, Annot., 59 A.L.R.3d 685 (1974). However, we 

find it unnecessary to address specifically this question since 

the child has a viable cause of action. 

Appellant points out that the child is not represented 

by a guardian ad litem in the action. His lack of capacity 

to sue is a matter of affirmative defense, which must be raised 

by a responsive pleading. Rule 8, M.R.Civ.P. Once the issue 

is raised, the court will order the appointment of a guardian 

ad litem, Rule 17(c), M.R.Civ.P, if he is not otherwise 

represented. He may also sue by his next friend. Rule 17 (c) , 

M.R.Civ.P. 
Accordingly, the order of the District Court is 

reversed and the cause remanded for further proceedings. 

We Concur: 

Chief Justice 

/