Purcell Bank & Trust Co. of Purcell v. Byars
| Decision Date | 14 August 1917 |
| Docket Number | 8227. |
| Citation | 167 P. 216,66 Okla. 70,1917 OK 432 |
| Parties | PURCELL BANK & TRUST CO. OF PURCELL ET AL. v. BYARS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
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.
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.
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.
Commissioners' Opinion, Division No. 1. Error from District Court, McClain County; F. B. Swank, Judge.
Action by Catherine Byars against the Purcell Bank & Trust Company of Purcell and A. F. Tooley. Judgment for plaintiff, and defendants bring error. Reversed.
Chas G. Moore, of Purcell, and Chas. L. Moore, of Oklahoma City for plaintiffs in error.
Franklin & Mauldin, of Purcell, for defendant in error.
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 court 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 pleaded the statutes of limitation as a 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 of limitation were then set in operation. On the other hand, it is contended on behalf of the plaintiff that her cause of action did not arise until a demand was made by her for the delivery of this money, and that she could not rightfully demand the money from the clerk during the pendency of an appeal from the award made by the referees in the condemnation proceeding; that this appeal was pending until dismissed on May 18, 1915; and that the statutes of limitation did not commence to run until that date.
The condemnation proceedings were instituted under the provisions of the act of Congress of February 28, 1902 (32 Stat. 43), commonly known as the Enid & Anadarko Act. Section 15 of said act, among other things, provides:
"Any party to the proceedings who is dissatisfied with the award of the referees shall have the right, within ten days after the making of the award, to appeal, by original petition, to the United States court, or [any] other court of competent jurisdiction, sitting at the place nearest and most convenient to the property sought to be taken, where the question of the damages occasioned by the taking of the lands in controversy shall be tried de novo, and the judgment rendered by the court shall be final and conclusive, subject, however, to appeal as in other cases."
Said section further provides:
"When the award of damages is filed with the clerk of the court by the referees, the railway company shall deposit the amount of such award with the clerk of the court, to abide the judgment thereof, and shall then have the right to enter upon and take possession of the property sought to be condemned."
This act of the Congress granted the right of way through Oklahoma Territory and Indian Territory to the Enid & Anadarko Railway Company and made specific provisions as to that company. The act proceeds in sections 13 to 23, inclusive, to enact general provisions to enable any railway company to secure right of way for the construction of its railroad through the Indian Territory. The provisions of the act as to assessment of damages occasioned by the construction of the Enid & Anadarko Railway through lands held by individual occupants is found in section 3 of said act. It is provided that three referees are to be appointed, one by the Secretary of the Interior, one by the principal chief of the nation to which the occupant belongs, and one by said railway company. It is also provided that:
"Either party being dissatisfied with the finding of the referees shall have the right, within 90 days after the making of the award and notice of the same, to appeal by original petition to the United States Court for the Indian Territory, which court shall have jurisdiction to hear and determine the subject-matter of said petition, according to the laws of the [Indian] Territory in which the same...
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