Nordman v. School Dist. No. 43 of Choctaw County

• Decision Date: 14 October 1941
• Docket Number: 29,835.
• Citation: 121 P.2d 290,190 Okla. 135,1941 OK 327
• Parties: NORDMAN v. SCHOOL DIST. NO. 43 OF CHOCTAW COUNTY.
• Court: Oklahoma Supreme Court

121 P.2d 290

190 Okla. 135, 1941 OK 327

NORDMAN v. SCHOOL DIST. NO. 43 OF CHOCTAW COUNTY.

No. 29,835.

Supreme Court of Oklahoma

October 14, 1941

Rehearing Denied Dec. 23, 1941.

Application for Leave to File Second Petition for Rehearing Denied Feb 3, 1942.

Syllabus by the Court.

Where default judgment has been rendered against a school district upon a petition which affirmatively shows upon its face that the bond sued upon is barred by the statute of limitations such judgment is properly set aside for irregularity upon motion timely presented under sections 556 and 563, O.S.1931 12 Okl.St.Ann. §§ 1031 and 1038.

Appeal from District Court, Choctaw County; Geo. R. Childers, Judge.

Action on a bond by John A. Nordman against School District No. 43 of the County of Choctaw, a municipal corporation of the State of Oklahoma. From an order setting aside a default judgment upon motion, plaintiff appeals.

Affirmed.

HURST J., dissenting.

T. B. Westmoreland, of Sallisaw, and J. G. Guise, Jr., of St. Louis, Mo., for plaintiff in error.

Norman Horton, of Hugo, for defendant in error.

WELCH Chief Justice.

On February 21, 1939, plaintiff in error as plaintiff below filed his petition seeking judgment against the defendant School District upon a $500 bond issued by the district, due and payable upon a date certain, to-wit, July 1, 1933.

Due service of summons was had upon the proper school district officials and after answer day had expired, and no pleadings having been filed on the part of defendant, default judgment was rendered on May 1, 1939, for the sums prayed.

On October 6, 1939, motion by defendant to set aside and vacate the judgment was filed and after notice and hearing the judgment was set aside, from which action this appeal is taken.

It is asserted by defendant that the default judgment was irregular and void, one of the grounds therefor being that the petition and judgment roll shows upon its face that the plaintiff's cause of action is barred by the statute of limitations. An action upon such an obligation is barred five years after the specific due date thereof. Miller v. Independent School District No. 16, Kingfisher County, 171 Okl. 136, 42 P.2d 125.

The petition upon the face thereof disclosed that same was barred under the rule of the Miller case, supra. The petition was therefore subject to general demurrer for that reason. Berry Dry Goods Co. v. Ward, 120 Okl. 11, 249 P. 916; Tiger v. Brown, 130 Okl. 83, 265 P. 124; Sommers v. Heiny, 132 Okl. 237, 270 P. 28; Hartzell v. Choctaw Lbr. Co., 163 Okl. 240, 22 P.2d 387; Raymer v. Comley Lbr. Co., 169 Okl. 576, 38 P.2d 8; and Johnson v. State, 173 Okl. 508, 49 P.2d 141.

It clearly appears from those decisions and others that had defendants demurred generally to the petition it would have been error for the court to overrule same, and if default judgment had been rendered the same would have been reversed upon appeal for insufficiency of the pleadings to sustain the judgment. 34 C.J. 153, paragraph 363. Clark v. Holmes, 31 Okl. 164, 120 P. 642, Ann.Cas.1913D, 385.

We have not overlooked those decisions holding there may be a waiver of the benefits of the limitations statutes. Such waiver may ordinarily be accomplished by action on the part of one clothed with authority to do so. 34 Amer.Jur. 318, paragraph 405 and 406.

However, in such an action as this one the school district is the real party in interest. Consolidated School District v. Beeson, 30 Okl. 802, 120 P. 643.

While the director is authorized to appear for the district and defend such an action as this, section 6801, O.S.1931, 70 Okl.St.Ann. § 104, there must be strict or definite limitation to his authority to take any action therein against the interest of the district and bind the district thereby. We have held that said section does not authorize the entry of a confession of judgment. Moore v. School District, 11 Okl. 332, 66 P. 279. It would seem to follow that the school district officer or officers could not accomplish by non action, that which they are not authorized to accomplish by direct affirmative action.

We think where a judgment has been rendered by default on a petition which affirmatively shows on its face that the statute of limitation has run, and the judgment roll on its face affirmatively shows that the party or officer whose duty it is to appear and defend is without authority to waive the running of the statute, such judgment is at least irregular.

A school district is a political subdivision of the state. Its powers, and those of its officers, are only such as are specifically granted by the Constitution and statutes, and such as are reasonably or necessarily incident to the specific grant. Our Constitution and statutes have carefully restricted the incurring of debt and the expenditure of the public funds. Prior decisions of this court are many and uniform to the effect that a claimant to public funds of a subdivision of the state must point to statutory authority in support of the claim. The ultimate object of plaintiff's suit is to recover a part of the public funds of the defendant school district. Those funds are by law entrusted to the care of the directors of the school district under careful legal restrictions as to disposition thereof. The statute grants permission to sue the district, and section 101 O.S.1931, 12 Okl.St.Ann. § 95, restricts the time in which suit may be brought. Nowhere in the statute has it been pointed out that there has been given authority to the director or officers of a school district to waive any provision of law, which waiver will operate directly to charge the district either with debt or liability or result in divesting it of any part of its public funds.

It is generally true that a private person may voluntarily waive a substantial right and may, if he chooses, voluntarily dispose of his funds as he desires and at his discretion, but that rule does not apply to an agent unless he has been authorized so to do. The authority given the agents of the school district is statutory and therefore open for all to know, and in view of the well known fiscal policy of our laws, to the effect that the municipal agents may expend such funds, or incur financial liability, only as they are specifically or by reasonable implication so authorized, we must conclude that the school directors have been given no specific or implied authority to acknowledge by waiver, a debt which otherwise the school district is not unequivocally bound by law to pay.

To hold otherwise than as here indicated would result in permitting school directors at their will to pay, or bring about the payment of certain claims, and to deny others of equal station, which would seem to result in unsound public policy and which nowhere appears to have been intended from the powers granted to the directors. Such powers might tend to induce fraud, collusion and oppression, and result in additional burdens upon taxpayers without their consent and in a manner not provided for by law.

In Finn v. United States, 123 U.S. 227, 8 S.Ct. 82, 31 L.Ed. 128, the Supreme Court of the United States held as stated in paragraphs two and three of the headnotes:

"The general rule that a party making a defense of the Statute of Limitations must plead the statute, if he wishes the benefit of its provisions, has no application to suits in the court of claims against the United States.

A judgment in the court of claims for the amount of a claim which the record or evidence shows to be barred by the Statute of Limitations is erroneous."

In the opinion it is said: "The general rule that limitation does not operate by its own force as a bar but is a defense, and that the party making such a defense must plead the statute if he wishes the benefit of its provisions, has no application to suits in the court of claims against the United States. An individual may waive such a defense, either expressly or by failing to plead the statute; but the government has not expressly or by implication conferred authority upon any of its officers to waive the limitation imposed by statute upon suits against the United States in the court of claims. Since the government is not liable to be sued, as of right, by any claimant, and since it has assented to a judgment being rendered against it only in certain classes of cases, brought within a prescribed period after the cause of action accrued, a judgment in the court of claims for the amount of a claim which the record or evidence shows to be barred by the statute would be erroneous."

The conclusion of the court in the Finn case and the quoted portion of the opinion conforms to our conclusion here. True, in that case the United States Supreme Court seems to construe the limitation statute as a condition or qualification of the right. It might be thought that the case holds that the running of the statute wholly extinguishes the right. We here go only so far as to say that school district directors have not been given the authority to waive the running of the statute of limitations, and therefore do not have the right to do so when such waiver alone will result in judgment which otherwise could not be taken.

Further supporting our conclusion in principles of law is Spring Canyon Coal Co. v. Industrial Commission of Utah, 58 Utah 608, 201 P. 173, 178, wherein the right of a public body with control or disposition of public funds to waive the general statute of limitations is denied. We quote therefrom as follows:

"There is another feature of the case, which, in view of the fact that it involves public rights, we feel constrained to refer to before closing.

In view of the recent decision of this court in Inter-Urban Const. Co. Industrial Comm. , 199

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