City of Bristow ex rel. Hedges v. Groom

• Citation: 1944 OK 223,194 Okla. 384,151 P.2d 936
• Decision Date: 29 May 1944
• Docket Number: Case Number: 30312
• Parties: CITY OF BRISTOW ex rel. HEDGES et al. v. GROOM et al.
• Court: Supreme Court of Oklahoma

1944 OK 223

151 P.2d 936

194 Okla. 384

CITY OF BRISTOW ex rel. HEDGES et al. v. GROOM et al.

Case Number: 30312

Supreme Court of Oklahoma

Decided: May 29, 1944

Syllabus

¶0 1. LIMITATIONS OF ACTIONS-Applicability of general statutes of limitation.

The general statutes of limitations found in the Code of Civil Procedure (12 O. S. 1941 §§ 91-98) apply to all civil actions, not involving sovereign or public rights, unless "in special cases, a different limitation is prescribed by statute," or the Legislature indicates an intention that the particular action shall not be subject to the bar of any statute of limitations.

2.MUNICIPAL CORPORATIONS--ACTION--Action to enforce special assessment lien a "civil action."

An action to enforce a special assessment lien brought under 11 O. S. 1941 § 107 is a "civil action" as that expression is used in the Code of Civil Procedure.

3. SAME--Bondholders real parties in interest though action prosecuted in name of municipality

An action to foreclose special assessment liens under 11 O. S. 1941 § 107, although prosecuted in the name of the municipality, is an action to enforce private rights, and the bondholders are the real parties in interest and control the prosecution of the action.

4. SAME--LIMITATION OF ACTIONS--Legislative intent that general statutes of limitation shall not apply to action to foreclose lien not implied by certain statutory provisions.

A legislative intent that the action to foreclose the special assessment lien authorized by 11 O. S. 1941 § 107 shall not be subject to the bar of the general statutes of limitations is not implied by the provisions of chapter 173, S. L. 1923, of which section 107 was a part, that the special assessment lien shall be "coequal with the lien of other taxes" or that it shall "continue as to unpaid installments and interest until such assessment shall be fully paid."

5. SAME---Three-year statute applicable to action to foreclose lien--When cause of action accrues.

An action to foreclose a special assessment lien under 11 O. S. 1941 § 107 is an action on a "liability created by statute" and is barred after the expiration of three years from the accrual of the cause of action, under 12 O. S. 1941 § 95 (2), and such action accrues on the assessment where (1) there is a delinquency after the due date of the last installment and (2) such delinquency continues for twelve months.

6. SAME--CONSTITUTIONAL LAW--Bondholders' constitutional rights not denied by judgment denying them relief on ground action is barred by limitation statute.

A judgment denying relief in a foreclosure action prosecuted under 11 O. S. 1941 § 107, on the ground that the action is barred by the statute of limitations, does not deny the bondholders rights guaranteed to them by either the contract clause, the due process clause, or the equal protection clause, of the State or Federal Constitution.

Appeal from District Court, Creek County; C. O. Beaver, Judge.

Proceeding in the name of the City of Bristow by Mildred C. Hedges and another, executrices of the estate of J. F. Hedges, deceased, against Viola E. Groom and others. Judgment for defendants, and relators appeal. Affirmed.

Norman E. Reynolds and W. Otis Ridings, both of Oklahoma City, for plaintiffs in error.

Wm. L. Cheatham, of Oklahoma City, and Lloyd L. Smith, of Bristow, for defendants in error.

BAYLESS, J.

¶1 This is an action to foreclose special assessment liens for street improvements under the provisions of chapter 173, S. L. 1923. The question presented is whether the general statutes of limitations apply to such actions.

¶2 In 1924, the city of Bristow, pursuant to the provisions of chapter 173, S. L. 1923, created street improvement district No. A-19 and levied special assessments against the properties therein. The assessments were payable in ten equal annual installments, the last falling due September 1, 1934. The city then issued street improvement bonds, series No. A-19, Nos. 1 to 91, inclusive, payable solely from the proceeds of said assessments. The bonds were. payable in their numerical order on October 1, 1934, or before then upon call of the city treasurer.

¶3 Default was made in payment of certain of the bonds, and on March 22, 1940, more than five years after the last assessment installment became delinquent and the bonds became payable, plaintiffs, the owners of bonds Nos. 70, 73 to 75, inclusive, and Nos. 80 to 85, inclusive, brought this action to foreclose the special assessment lien as authorized by 11 O. S. 1941 §107. A separate cause of action was stated against each lot or group of lots separately owned, showing the amount of each delinquent installment, the year for which the same was due, and the amount of interest thereon. The years for which the delinquent installments were due upon the different pieces of property ranged from 1925 to 1934.

¶4 The defendants filed demurrers to the petition upon the ground, among others, that the causes of action were shown to be barred by the statute of limitations. From a judgment sustaining the demurrers upon such ground, plaintiffs appeal.

¶5 1. Plaintiffs first contend that no statute of limitations applies to the action to enforce such special-, assessments lien by foreclosure provided by section 107, supra. This contention involves two points: (1) That the action provided by section 107, supra, is a "special proceedings", which generally are not subject to statute of limitations, citing Morgan v. City of Ardmore, 182 Okla. 542, 78 P. 2d 785, which is cited and followed in Hann v. City of Clinton, 131 Fed. 2d 978; and (2) an intention manifest by the language of the Act of 1923 to except the action provided for in section 107 thereof from the operation of the statute of limitations, 12 O. S. 1941 §§ 91-98, the pertinent provisions of which are as follows:

"Civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitations." 12 O. S. 1941 § 92.

"Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

"First: Within five years: An action upon any contract, agreement or promise in writing.

"Second: Within three years: An action upon a contract express or implied not in writing; an action upon a liability created by statute other than a forfeiture or penalty....

"Sixth: An action for relief, not hereinbefore provided for, can only be brought within five years after the cause of action shall have accrued." 12 O. S. 1941 § 95, (1), (2), (6).

¶6 These sections of the statute of limitations apply to "civil actions" as differentiated from "special proceedings." For the differences between the two, see 12 O. S. 1941 §§ 3-8; and Harryman v. Bowlin, 153 Okla. 202, 4 P. 2d 1011; Hickman v. Gumerson, 190 Okla. 514, 125 P. 2d 765, and 1 C.J.S. 1094. From a consideration of the language of sections 4 and 5 above, the two cases just cited and the text and many decisions cited in the footnotes thereto, we think it may be said that "civil actions" are the rule, "special proceedings" are the exception.

¶7 We are of the opinion that the present action brought under section 107, supra, is one for the "enforcement or protection of a right" as defined in section 4, supra, and requires the various procedural steps outlined in the two cases just cited, and, therefore, a civil action as defined in section 8, supra, and is not a "special proceedings."

¶8 In arriving at this conclusion we are not unaware of our language in Morgan v. City of Ardmore, supra, which was adopted and followed by the Circuit Court of Appeals in the City of Clinton Case, supra, wherein actions of this type were referred to as a "special proceeding." The question here was not there involved and the distinction between "civil actions" and "special proceedings" was not involved in our decision or thought of. In that decision the action was referred to as an "action" and also as a "special proceedings" loosely and without the precision which ordinarily is observed in the use of these two distinct terms. Therefore, insofar as Morgan v. City of Ardmore, supra, is in conflict with this decision with respect to the nature of the action being prosecuted, it is expressly overruled.

¶9 Also, in reaching this conclusion we are aware of the terms used by the Legislature in section 107 and have observed the uniformity in the meaning thereof. In that section the right of action provided is referred to six times as an "action,'' once as a "civil action" and once as a "suit." Not once is it referred to as "special proceeding." In addition it is required that summons should be issued on the petition filed as in other "civil actions." It is provided that judgment shall be rendered and the terms thereof are stated. It is provided that the judgment may be enforced by an order of sale as in the case of the sale of real estate under execution.

¶10 The statutes of limitations, above, are found in our Code of Civil Procedure and are comprehensive. By the plain terms of section 92, they are intended to apply to all "civil actions," not involving sovereign or public rights (17 R.C.L. 689; 37 C.J. 710), including civil actions authorized by future Legislatures, except "where, in special cases, a different limitation is prescribed by statute." Section 95 was intended to apply to all such civil actions, "other than for the recovery of real property," and to be certain that none were omitted the sixth paragraph was added. In view of the comprehensive nature of sections 92 and 95, above, it is clear that every such civil action, other than for the recovery of real property, is governed by the provisions of section 95, unless the Legislature has either prescribed a different limitation period as to a particular civil...