Purcell Bank & Trust Co. of Purcell v. Byars, Case Number: 8227

CourtSupreme Court of Oklahoma
Writing for the CourtRUMMONS, C.
Citation66 Okla. 70,167 P. 216,1917 OK 432
PartiesPURCELL BANK & TRUST CO. OF PURCELL et al. v. BYARS.
Decision Date14 August 1917
Docket NumberCase Number: 8227

1917 OK 432
167 P. 216
66 Okla. 70

PURCELL BANK & TRUST CO. OF PURCELL et al.
v.
BYARS.

Case Number: 8227

Supreme Court of Oklahoma

Decided: August 14, 1917


Syllabus

¶0 1. Eminent Domain -- Railroad Right of Way--Award--Appeal. In order to perfect an appeal from an award of damages by referees, under the provisions of section 15, Act. Cong. Feb. 28, 1902, c. 134, 32 Stat. 43, a petition must be filed by the party dissatisfied with such award in a court of competent jurisdiction, and summons to the adverse party issued thereon within ten days from the return of such award.

2. Limitation of Actions--Liability of Clerk of Court. A cause of action against a clerk of the district court for moneys of litigants received by him in his official capacity accrues and the statutes of limitation begin to run upon the conversion of such moneys by the clerk; the person entitled thereto being under no disability. Such conversion may arise upon his refusal to turn over the money upon demand or upon his failure to turn over the money to his successor upon going out of office.

3. Limitation of Actions--Demand--Delay. Where a demand is required to perfect a cause of action, such demand must be made within a reasonable time, and the party entitled to make demand cannot extend the running of the statutes of limitation by delay in making demand.

Chas. G. Moore and Chas. L. Moore, for plaintiffs in error.

Franklin & Mauldin, for defendant in error.

RUMMONS, C.

¶1 This is an action against the sureties upon the official bond of J. G. Siler as clerk of the district court of McClain county. The record discloses that the defendant in error, hereinafter styled the plaintiff, was the owner of a tract of land situate in the Indian Territory and what is now McClain county; that on April 18, 1916, the Oklahoma Central Railway Company instituted proceedings in the United States Court for the Southern District of the Indian Territory, at Purcell, to condemn a right of way across the lands of plaintiff. The United States Court appointed referees to appraise the damages, and such referees awarded to the plaintiff the sum of $ 657.17. The report of the referees was filed May 14, 1906. The Oklahoma Central Railway Company forthwith deposited with the deputy clerk of the United States Court at Purcell the amount of the award. On May 22, 1906, the plaintiff, being dissatisfied with the amount of the award, undertook to appeal therefrom by filing what is denominated an original petition in the United States Court for the Southern District, at Purcell. Summons issued on the petition November 13, 1906. The cause was transferred to the district of McClain county at the time of statehood, and on October 15, 1908, the service of summons was quashed by the district court of McClain county. No alias summons was ever issued. On May 18, 1915, the plaintiff caused this action to be dismissed and on May 19, 1915, brought the instant suit upon the bond of J. G. Siler. Siler was elected clerk of the district court, qualified by executing the bond herein sued on, and took office on November 16, 1907. His term of office expired on January 9, 1911, and he died in February, 1911. The amount of the award to plaintiff was turned over to Siler upon his taking office by the clerk of the United States Court of the Southern District. Siler failed and neglected to turn the money over to his successor upon retiring from office. The defendants demurred, and such demurrer was overruled, defendants excepting. The defendants then pleaded the general issue, but admitted the execution of the bond sued on and the incumbency of Siler as clerk of the district court of McClain county during the period above stated. The defendant further pleads the statutes of limitation as bar to this action; pleaded that the plaintiff by her act in filing her original petition in the United States Court did not take an appeal from the award of the referees in the condemnation proceeding, for the reason that no summons was issued upon said petition within ten days from the filing of the report of the referees. The defendants further pleaded as a bar to this action the failure of the plaintiff to file a claim with the administrator of the estate of J. G. Siler, deceased, within the period of limitation for filing such claims. The plaintiff demurred to that part of the answer of the defendant which pleaded the statutes of limitation, the failure to take an appeal, and the failure to file a claim with the administrator. This demurrer was sustained, to which the defendants excepted. Plaintiff had judgment, to reverse which defendants prosecute this proceeding in error. The question necessary to be determined in this case is whether the action of plaintiff was barred by the statutes of limitation. There seems to be no controversy between plaintiff and defendants that the action would be barred three years after the cause of action arose. The time when the cause of action arose is the point in controversy. It is contended on behalf of the defendants that plaintiff was entitled to demand this money at any time after the approval by the United States Court of the report of the referees which was on May 13, 1907, and that in any event plaintiff's cause of action arose upon the failure of Siler to turn this money over to his successor when he retired from office on January 9, 1911, and that the statutes...

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7 practice notes
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...as they are wrongfully taken from his possession. (16 Cal. Jur. 525, sec. 124; Havird v. Lung, supra; Purcell Bank & Trust Co. v. Byars, 66 Okla. 70, 167 P. 216, at 218; Bell v. Bank of California, 153 Cal. 234, 94 P. 889; 24 Cal. Jur. 1032.) LEEPER, J. Givens and Varian, JJ., and Sutton, D......
  • Okla. City Fed. Sav. & L. Ass'n v. Swatek, Case Number: 29915
    • United States
    • Supreme Court of Oklahoma
    • July 7, 1942
    ...Co. (La.) 7 So. 35; In re Boston & Roxbury Mill Corporation, 218 Mass. 425, 105 N. E. 982; Purcell Bank & Trust Co. of Purcell v. Byars, 66 Okla. 70, 167 P. 216; State ex rel. Schilling v. Oklahoma City, 67 Okla. 18, 168 P. 227; State ex rel. Gooch v. Drumright, 8 Okla. 244, 212 P. 991; 34 ......
  • Johnston v. Keefer, 5156
    • United States
    • United States State Supreme Court of Idaho
    • July 15, 1929
    ...(Jenkins v. Marsh, 22 Cal.App. 8, 132 P. 1051; Guffey v. Gulf Production Co., 17 F. (2d.) 926, 930; Purcell Bank & Trust Co. v. Byars, 66 Okla. 70, 167 P. 216; State v. Oklahoma City, 67 Okla. 18, 168 P. 227.) BUDGE, C. J. Givens, T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur. OPINION [......
  • Cook v. Bingman, Case Number: 32351
    • United States
    • Supreme Court of Oklahoma
    • April 8, 1947
    ...of the statute of limitations by failure to make such demand. In the case of Purcell Bank & Trust Company of Purcell et al. v. Byars, 66 Okla. 70, 167 P. 216, this court in the third paragraph of the syllabus said:"Where a demand is required to perfect a cause of action, such demand must be......
  • Request a trial to view additional results
7 cases
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...as they are wrongfully taken from his possession. (16 Cal. Jur. 525, sec. 124; Havird v. Lung, supra; Purcell Bank & Trust Co. v. Byars, 66 Okla. 70, 167 P. 216, at 218; Bell v. Bank of California, 153 Cal. 234, 94 P. 889; 24 Cal. Jur. 1032.) LEEPER, J. Givens and Varian, JJ., and Sutton, D......
  • Okla. City Fed. Sav. & L. Ass'n v. Swatek, Case Number: 29915
    • United States
    • Supreme Court of Oklahoma
    • July 7, 1942
    ...Co. (La.) 7 So. 35; In re Boston & Roxbury Mill Corporation, 218 Mass. 425, 105 N. E. 982; Purcell Bank & Trust Co. of Purcell v. Byars, 66 Okla. 70, 167 P. 216; State ex rel. Schilling v. Oklahoma City, 67 Okla. 18, 168 P. 227; State ex rel. Gooch v. Drumright, 8 Okla. 244, 212 P. 991; 34 ......
  • Johnston v. Keefer, 5156
    • United States
    • United States State Supreme Court of Idaho
    • July 15, 1929
    ...(Jenkins v. Marsh, 22 Cal.App. 8, 132 P. 1051; Guffey v. Gulf Production Co., 17 F. (2d.) 926, 930; Purcell Bank & Trust Co. v. Byars, 66 Okla. 70, 167 P. 216; State v. Oklahoma City, 67 Okla. 18, 168 P. 227.) BUDGE, C. J. Givens, T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur. OPINION [......
  • Cook v. Bingman, Case Number: 32351
    • United States
    • Supreme Court of Oklahoma
    • April 8, 1947
    ...of the statute of limitations by failure to make such demand. In the case of Purcell Bank & Trust Company of Purcell et al. v. Byars, 66 Okla. 70, 167 P. 216, this court in the third paragraph of the syllabus said:"Where a demand is required to perfect a cause of action, such demand must be......
  • Request a trial to view additional results

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