North v. Haning

• Decision Date: 14 November 1950
• Docket Number: No. 33748,33748
• Citation: 229 P.2d 574,204 Okla. 321
• Parties: NORTH et al. v. HANING.
• Court: Oklahoma Supreme Court

Page 574

229 P.2d 574

204 Okla. 321

NORTH et al. v. HANING.

No. 33748.

Supreme Court of Oklahoma.

Nov. 14, 1950.

Rehearing Denied Jan. 23, 1951.

Second Petition for Rehearing Denied March 27, 1951.

Syllabus by the Court

1. A decree for foreclosure of a special assessment rendered in an action pursuant to 11 O.S.1941 § 107 is a 'Final determination of the rights of the parties in an action' and is in statutory definition a judgment, 12 O.S.1941 § 681, and such decree is a judgment within the meaning and usage of that term in the dormancy statute, 12 O.S.1941 § 735. Under said section 735 when a period of five years has elapsed after the date of such judgment and an order of sale has not been issued, as authorized under section 107, and as decreed in the judgment, the judgment becomes dormant and with an effect that such special execution may not thereafter issue and with an effect that the remedy for the enforcement of the assessment lien as provided by section 107 becomes spent and lost.

2. 11 O.S.1941 § 107 which grants a bondholder the right to institute an action to foreclose an assessment lien precludes any other or further action to collect such assessments when an action thereunder has been commenced and has proceeded to judgment. When such judgment has become finally dormant the remedy for the enforcement of the lien becomes effectively lost. In such circumstances the commencement of the action under section 107 ceases to operate in toll of the three year period of limitation provided in 11 O.S.1941 § 242 for the commencement of action and the preservation of the lien, and under section 242 the lien ceases to exist and becomes subject to cancellation.

Banker & Bonds, Muskogee, Carver & Cook, Wewoka, for plaintiffs in error.

James F. Haning and Richard S. Roberts both of Wewoka, for defendants in error.

WELCH, Justice.

This action was commenced by James F. Haning against S. N. North and others to quiet title to certain lots located in the City of Wewoka. The plaintiff in petition alleged possession of the lots and ownership thereof under and by virtue of a certain county commissioner's deed thereto; that defendants claim liens against the property as owners or trustees of owners of certain street improvement bonds, and as beneficiaries under a judgment against the property for foreclosure of the liens of special assessments levied against the property for the payments of said bonds. The plaintiff averred that more than six years expired after the rendition of judgment foreclosing such liens and that during such period no execution on the judgment was issued and no application or order for a revivor of the judgment was made. Plaintiff asserted that said judgment became dormant and extinguished by operation of law and further that the liens of the unpaid assessments against the property are barred, expired and extinguished by operation of law and under 11 O.S.1941 § 242. Plaintiff prayed judgment against the defendants quieting his title to the real estate against the lien of the special assessments and the street improvement bonds and the former judgment for foreclosure of the assessment liens.

The defendants named as bondholders in the plaintiff's petition filed answers and challenged the proposition of law asserted by the plaintiff.

The case was presented to the trial court upon a stipulation by the parties of the truthfulness of the statements of fact as set out and shown in the pleadings and attached exhibits.

The plaintiff's possession and ownership of the real estate mentioned was shown and admitted. The record reflects that the bonds mentioned, bonds of Improvement District No. 11 of the City of Wewoka, were issued on January 7, 1928, and matured in October, 1938. In August 1940 a suit was commenced for the foreclosure of the liens of unpaid assessments resulting in a judgment entered on April 4, 1941, wherein there was determined the amount of the unpaid assessments due and constituting a lien against the property here involved. It was decreed that the plaintiff therein, trustee of the bondholders, was entitled to a foreclosure of the lien and that if the amount of the assessments as found was not paid within six months an order of sale should issue by the court clerk directing sale of the property to satisfy such assessments.

It is noted from the pleadings and stipulation that six years elapsed after entry of the judgment and no order of sale was issued and no order reviving the judgment was entered.

Herein judgment was rendered for the plaintiff quieting title to the real estate and against the unpaid assessment liens and against the judgment for the foreclosure of the assessment liens.

Defendants, in appeal, assert that 'revivor of the foreclosure judgment was not necessary' and that the 'enforcement of the paving liens are not barred by limitations.'

The question first presented concerns the applicability of 12 O.S.1941 § 735 as affecting the foreclosure judgment. The section reads: 'If execution shall not be sued out within five years after the date of any judgment that now is or may hereafter be rendered, in any court of record in this State, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor: Provided that this section shall not apply to judgments against municipalities.'

The action for foreclosure of the assessment lien was brought under the provisions of 11 O.S.1941 § 107. Section 107 was enacted in 1923 and provides that any holder of any street improvement bond issued under the provisions of that act shall have the right to institute in the name of the city or town issuing such bond, an action in the district court to foreclose the lien of the special assessments made for the payment of such bond whenever the assessment is delinquent for the stated period. It is provided that all owners or encumbrancers of the assessed property shall be made parties defendant in said suit. A necessary averment of the petition is ownership of such bond and description of the property assessed and the amount of the unpaid delinquent assessments and dates of such delinquencies. It is provided that summons shall be issued on such petition as in other civil actions and the cause tried by said district court, and that judgment may be entered thereon for the amount of such unpaid assessments and interest. It is provided that in the event said judgment, together with interest and cost, is not paid within six months after the date of the rendition thereof, an order of sale shall issue directing sale of the property and providing the proceeds after payment of costs shall be used in the payment of the bonds.

In statutory definition 'a judgment is the final determination of the rights of the parties in an action.' 12 O.S.1941 § 681.

In 12 O.S.1941, §§ 731 and 732 it is declared:

'Executions shall be deemed process of the court, and shall be issued by the clerk, and directed to the sheriff of the county. They may be directed to different counties at the same time.

'Executions are of three kinds:

'First, against the property of the judgment debtor.

'Second, for the delivery of possession of real or personal property, with damages for withholding the same, and costs.

'Third, executions in special cases.'

The enforcement of the lien of an assessment by action under section 107, supra, requires a judicial determination of the amount of the unpaid delinquent assessment as a basis for the foreclosure of the lien and constitutes a judicial determination of the amount required in redemption of the property from the lien. This determination with decree that if there has been no redemption of the property within six months the plaintiff therein is entitled to have sale of the property under process of the court and have application of the proceeds to payment of the bonds obviously constitutes a final determination of the rights of the parties in the action. Clearly, such judicial pronouncement is a judgment within the meaning of that term as defined by statute. The effectiveness of the judicial pronouncement rests on the special execution authorized by the statutes. Without provision for order of sale or special execution and judicial determination of the bondholder's right to such special execution there could be no enforcement of the assessment lien by action such as provided by section 107.

We think it clear that the intent and purpose of section 735 was to require that when there has been a final determination of the rights of the parties in an action, that there shall be an exercise of such rights as determined within five years, or that said rights shall become dormant and may not be exercised, or more specific, that when there has been a final determination of the rights of the parties in an action which includes a right to have issue of the process of the court against the estate of any person, or against a particular property, that upon a failure to have such general or special execution issue within five years, the right to such process shall be lost. It is to be noted that in the terms of the section there is but one express exception of the inapplicability of the section and that is as to judgments against municipalities, and that it is otherwise provided by statute that no person shall have a right of execution against a municipality.

It is the contention of the defendants herein that section 735 has application only to judgments in personam.

There is no language in the section of such an import or such as to require that the section be given such limited application, nor do we find in accompanying acts of the Legislature any language reflecting an intendment, or to the effect that said section 735 should not apply to a judgment in rem.

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