State ex rel. Comm'rs of the Land Office v. Sheriff

• Decision Date: 03 October 1933
• Docket Number: Case Number: 24621
• Citation: 165 Okla. 190,1933 OK 515,25 P.2d 659
• Parties: STATE ex rel. Commissioners OF THE LAND OFFICE v. JOHNSON Sheriff.
• Court: Oklahoma Supreme Court

1933 OK 515

25 P.2d 659

165 Okla. 190

STATE ex rel. Commissioners OF THE LAND OFFICE v. JOHNSON Sheriff.

Case Number: 24621

Supreme Court of Oklahoma

Decided: October 3, 1933

Syllabus

¶0 1. States--Costs--State not Liable for Costs Accrued in Proceedings to Foreclose Mortgage Given for Loan of State School Land Funds.

The state of Oklahoma, when proceeding in her own courts to foreclose a real estate mortgage given as security for a loan of state school land funds, is not liable for the payment of accrued court costs incurred in such foreclosure proceedings, and cannot be forced to pay any such costs said to have accrued in such action, because there is no specific statutory requirement that such costs be paid by the state.

2. Same--Mandamus -- Writ to Require Sheriff to Issue His Deed to State.

When the state of Oklahoma, on relation of the Commissioners of the Land Office, has concluded a foreclosure of a real estate mortgage given as security for a loan of state school land funds, and has become the purchaser of the real estate at a sheriff's sale thereof, which sale has been duly confirmed by the court, the sheriff cannot withhold his deed to such purchaser pending payment by the state of the court costs charged in the foreclosure proceedings; and upon a refusal of a sheriff to deliver such deed, he will be required to do so by mandamus.

Original petition filed in the Supreme Court of the State of Oklahoma, on the relation of the Commissioners of the Land Office of said state, seeking a writ of mandamus requiring the Sheriff of Murray County, Okla., to execute and deliver a sheriff's deed. Writ issued.

R. H. Couch, Haskell Paul, and Lloyd Story, for plaintiff.

Lynn W. Norman, Co. Atty., for defendant.

WELCH, J.

¶1 Plaintiff, by an original action in this court, seeks a writ of mandamus requiring the defendant, as sheriff of Murray county, Okla., to execute and deliver to the plaintiff a sheriff's deed covering lands in said county which had been sold by the defendant at sheriff's sale in the usual course of a real estate mortgage foreclosure.

¶2 Plaintiff herein instituted in the district court of Murray county, Okla., its action to foreclose its real estate mortgage held as security for a loan of state school land money. Plaintiff recovered judgment, and thereafter, in pursuance of an execution and order of sale, the land was sold by the defendant, as sheriff of said county, the plaintiff herein being the purchaser at such sale. The sale was confirmed by the district court of Murray county, and the sheriff ordered to execute his deed therefor to the purchaser. This the sheriff refused to do, assigning as his reason for such refusal the fact that the court cost had not been paid, and in this proceeding offers to deliver such deed to plaintiff if and when the plaintiff pays, or causes to be paid, such costs.

¶3 The question here presented is whether or not the state of Oklahoma, in the prosecution of an action to foreclose a real estate mortgage given as security for a loan of state school land funds, is liable for the payment of court costs in such action, and the question appears to be of first instance in this court. In 59 Corpus Juris, page 332, sec. 503, we find the following:

"While a state may be excused from the payment of costs because of express statutory exemption, it is a general and well-established rule, apart from statute, that costs are not recoverable from a state, in her own courts, whether she has brought suit as plaintiff or has properly been sued as defendant; or whether she is successful or defeated."

¶4 This general rule appears to be amply sustained by numerous authorities cited in support thereof, and indeed we have been unable to find any authorities whatever which do not adhere substantially to this rule. In State of Maryland v. Harlan Williams, cited in 1 L.R.A. 254, page 258, the court says:

"An examination of the authorities has satisfied us that costs cannot properly be awarded against the state in civil actions, in the absence of a statute giving express authority to render such a judgment. State, Use of Charlotte Hall School, v. Greenwell, 4 G. & J. 407; United States v. Barker, 2 Wheat. 395, 4 L. Ed. 271; The Antelope, 12 Wheat. 546, 550, 6 L. Ed. 723; Stanley v. Schwalby, 162 U.S. 255, 40 L. Ed. 960, 16 S. Ct. 754; Sandberg v. State, 113 Wis. 578, 89 N.W. 504,--declaring that the doubt expressed in Noyes v. State, 46 Wis. 250, 32 Am. Rep. 710, 1 N.W. 1, as to civil actions to be unfounded. We have been referred to State v. Maryland Agri. & Mechanical Ass'n, 98 Md. 216, 56 A. 484, as authority for the allowance of costs against the state. The bill in that case was dismissed by the circuit court without giving costs against the state, and their allowance in this court upon affirming the decree was through inadvertence. This opinion, however, will remove any question as to the property of such allowance in future cases."

¶5 In Natalbany Lumber Co., Ltd., v. Louisiana Tax Commission (La.) 143 So. 20, it is said:

"We were in error in our original decree in taxing the costs of the suit against defendants, Louisiana Tax Commission, police jury and board of reviewers, and assessor of St. Helena Parish. Neither the state, nor a state board, nor a state governmental agency, nor a public officer representing the state in his official capacity, owes any costs. Lyon Lumber Co. v. Louisiana Tax Commission, 158 La. 990, 996, 105 So. 39; State v. Succession of Taylor, 33 La. Ann. 1270; State v. Taylor, 34 La. Ann. 978; Succession of Townsend, 40 La. Ann. 66, 3 So. 488; Brown v. Pontchartrain Land Co., 49 La. Ann. 1779, 23 So. 292; State ex rel. Cunningham v. Board of Assessors, 52 La. Ann. 223, 26 So. 872."

¶6 In State v. Bradford Sav. Bank & Trust Co. (Vt.) 44 A. 349, the court said:

"* * * The judgment below was for the defendant to recover its costs. Unless allowed by statute, costs are not recoverable against the state. We have no statute permitting their recovery. Pro forma judgment for the defendant reversed. Judgment for the defendant, without costs."

¶7 In State v. Kinne, 41 N.H. 238, the court held:

"At common law there were no costs.

"All the costs that are allowed to any party, in any case, either civil or criminal, are given by statute both in England and in this country.

"As in England the king is not bound by any statute, unless he be expressly named to be so bound, so here the state is not bound by the general provisions of a statute by which any of its prerogatives, rights, titles, or interests would be divested, unless the statute be made by express words to extend to and include the state in its provisions.

"Therefore, by the provisions of our statute which enacts that 'costs shall follow the event of every action or petition, unless otherwise directed by law or by the court,' no costs can be recovered against the state by a party prevailing against it in any civil cause.

"Scire facias upon a recognizance entered into in a criminal

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