Battles v. Conner

• Decision Date: 03 May 1938
• Docket Number: 28189.
• Citation: 79 P.2d 232,182 Okla. 613,1938 OK 301
• Parties: BATTLES v. CONNER, County Treasurer, et al.
• Court: Oklahoma Supreme Court

79 P.2d 232

182 Okla. 613, 1938 OK 301

BATTLES v. CONNER, County Treasurer, et al.

No. 28189.

Supreme Court of Oklahoma

May 3, 1938

Syllabus by the Court.

1. An action under section 5953, O.S.1931, 62 Okl.St.Ann. § 477 against a county treasurer and his bondsmen for registering warrants issued in excess of the estimate made and approved by the excise board, is "an action upon statute for penalty" within the meaning of paragraph 4, section 101 O.S.1931, 12 Okl.St.Ann. § 95, par. 4, and is governed by the one-year statute of limitations therein provided.

2. Where a petition on its face shows that the causes of action set out therein are barred by the statute of limitations, it is not error to sustain a general demurrer thereto.

3. Where, in addition to a general demurrer, a party pleads by special demurrer a specific statute of limitations which is longer than the one applicable to the case, he will not be held to have waived the benefit of a shorter statute, which might have been pleaded.

Appeal from District Court, Muskogee County; E. A. Summers, Judge.

Action by H. P. Battles against John D. Conner, County Treasurer Muskogee County, Okl. and another, to recover the face amounts of two general fund warrants issued by a school district in Muskogee County. From a judgment of dismissal, the plaintiff appeals.

Affirmed.

Thomas J. Wiley and Jno. W. Porter, both of Muskogee, for plaintiff in error.

William B. Moore and A. Camp Bonds, both of Muskogee, for defendants in error.

HURST Justice.

The question involved in this appeal is whether the trial court erred in sustaining the separate demurrers of the defendants to the petition of plaintiff. Plaintiff commenced this action on May 11, 1936, against John D. Conner, County Treasurer of Muskogee County, and the U.S. F. & G. Co., surety on his official bond, to recover the face amount of two general fund warrants issued by a school district in Muskogee county. The petition contains two causes of action. In the first cause of action it is alleged in substance that plaintiff, for valuable consideration, is the owner and holder of a warrant issued by the school district on November 4, 1933, in excess of the estimate made and approved by the excise board; that, notwithstanding that fact, the county treasurer did then and there proceed to register the warrant, contrary to law; and that payment has been refused because it was in excess of the estimate approved by the excise board and is not a charge against the school district. Plaintiff then sets out the amount of the appropriation for the warrant sued on, which was less than the face amount of the warrant, and he also sets out the total appropriation and the total amount of warrants registered showing them to be in excess of the total appropriation. He then prays for judgment for the face amount of the warrant with interest. The second cause of action is substantially the same as the first. Plaintiff there seeks to recover for registering a warrant issued December 21, 1933, also in excess of the estimate made and approved by the excise board and registered by the county treasurer. The warrants attached as exhibits to the petition show that they were registered on the same day they were issued.

Defendants filed separate demurrers upon two grounds: First, that the petition does not state facts sufficient to constitute a cause of action; and, second, that the action was barred by the two-year statute of limitations as provided in paragraph 3, section 101, O.S.1931, 12 Okl.St.Ann. § 95, par. 3. The demurrers were sustained, plaintiff elected to stand on his petition, and judgment was entered in favor of defendants dismissing plaintiff's action. Plaintiff brings this appeal.

1. Under the view we take of this case, it is only necessary to decide the question of the statute of limitations. Plaintiff's action is based upon section 5953, O.S.1931, 62 Okl.St.Ann. § 477, which provides in part:

"It shall be unlawful for any officer to * * * register any warrant * * * in excess of the estimate of expenses made and approved for the current fiscal year or authorized for such a purpose by a bond issue, and any such warrant * * * registered in excess of the estimate made and approved * * * shall not be a charge against the municipality upon which it is issued, but may be collected by civil action from any officer * * * registering or paying the same, or from either or all of them, or from their bondsmen."

Plaintiff contends that this is an action upon a liability created by statute and is governed by the three-year statute of limitations prescribed in paragraph 2, section 101, supra, 12 Okl.St.Ann. § 95, par. 2, which provides:

"Second. Within three years: * * * An action upon a liability created by statute other than a forfeiture or penalty."

Defendants, as pleaded in their demurrers, take the position that the governing provision is paragraph 3, section 101, supra, 12 Okl.St.Ann.§ 95, par. 3, providing for a limitation period of two years in actions for injury to the rights of another, not arising on contract. They rely upon National Bank of Claremore v. Jefferies, 1927, 126 Okl. 283, 259 P. 260, which was an action founded on the negligence of the county treasurer in registering false and forged warrants. As we understand their argument, they contend that this action is based on negligence, "or alleged misconduct or alleged wrongful conduct" of the county treasurer. But we think it plain from the petition that the causes of action herein are founded upon the acts of the treasurer in registering the warrants issued in excess of the estimate made and approved by the excise board, creating a liability under the statute.

But neither is the statute upon which plaintiff relies the applicable statute in this case. It will be noted that the section relied upon by plaintiff will not apply to an action upon a liability created by statute where such liability is a penalty or forfeiture. An action to recover a penalty is governed by paragraph 4, section 101, supra, 12 Okl.St.Ann. § 95, par. 4, limiting the period to one year. It reads in part as follows:

"Fourth. Within one year: * * * An action upon a statute for penalty or forfeiture, except where the statute imposing it prescribes a different limitation."

Although the question has not been squarely passed upon by this court we think an action based on section 5953, supra, 62 Okl.St.Ann. § 477, is "an action...