State ex rel. Commissioners of Land Office v. Johnson

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

25 P.2d 659

165 Okla. 190, 1933 OK 515

STATE ex rel. COMMISSIONERS OF LAND OFFICE v. JOHNSON, Sheriff.

No. 24621.

Supreme Court of Oklahoma

October 3, 1933

Syllabus by the Court.

1. 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. 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 this court by the State, on the relation of the Commissioners of the Land Office of said state, seeking a writ of mandamus requiring the Sheriff of Murray County, to execute and deliver a sheriff's deed.

Writ issued.

R. H Couch, Haskell Paul, and Lloyd Story, all of Oklahoma City for plaintiff.

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

WELCH Justice.

Plaintiff by an original action in this court seeks a writ of mandamus requiring the defendant as sheriff of Murray county, Okl., 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.

Plaintiff herein instituted in the district court of Murray county, Okl., 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.

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, p. 332, § 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."

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, reported in 101 Md. 529, 61 A. 297, 299, 1 L. R. A. (N. S.) 254, page 258, 109 Am. St. Rep. 579, 4 Ann. Cas. 970, 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 Gill & J. [Md.] 407; United States v. Barker, 2 Wheat. 395, 4 L.Ed. 271; The Antelope, 12 Wheat. 550, 6 L.Ed. 723, 725; Stanley v. Schwalby, 162 U.S. 272, 40 L.Ed. 960, 966, 16 S.Ct. 754; Sandberg v. State, 113 Wis. 589, 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 Agricultural & Mechanical Ass'n, 98 Md. 223, 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 propriety of such allowance in future cases."

In Natalbany Lumber Company, Limited, v. Louisiana Tax Commission et al., 175 La. 110, 143 So. 20, 22, 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. 996, 105 So. 39; State v. Succession of Taylor, 33 La. Ann. 1272; 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."

In State v. Bradford Sav. Bank & Trust Co., 71 Vt. 234, 44 A. 349, 351, 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."

In State v. Kinne, cited in 41 N.H. at page 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...