Stephenson v. Bonney

• Decision Date: 21 March 1950
• Docket Number: 33084,Nos. 33083,s. 33083
• Parties: STEPHENSON, County Treasurer, Creek County, v. BONNEY et al. MOBLEY et al. v. STEPHENSON, County Treasurer, Creek County, et al.
• Court: Oklahoma Supreme Court

Page 315

216 P.2d 315

202 Okla. 549

STEPHENSON, County Treasurer, Creek County, v. BONNEY et al.

MOBLEY et al. v. STEPHENSON, County Treasurer, Creek County, et al.

Nos. 33083, 33084.

Supreme Court of Oklahoma.

March 21, 1950.

Syllabus by the Court.

1. In a mandamus proceeding the only pleadings allowed are the alternative writ and the answer thereto, 12 O.S.1941 § 1459, and where third persons enter such proceeding by intervention their intervening petition is nothing more than a further answer to the alternative writ, so that unless such intervening petition shows that plaintiff has no clear legal right to the relief sought the action of the trial court in sustaining a motion of plaintiff to strike such intervening petition is not error.

2. Our statutes impose upon the county treasurer a mandatory duty to advertise and sell delinquent special assessments, certified to him, with the sale for delinquent ad valoream taxes where the answer by the county treasurer to the alternative writ seeking to compel the performance of such duty by him contains only a general denial and a plea of limitations such answer sets up no valid defense to the alternative writ and an order and judgment of the trial court granting a peremptory writ will not be disturbed on review by this court.

R. E. Stephenson, Don W. Walker, Sapulpa, for plaintiff in error Stephenson.

G. B. Coryell, Sapulpa, Sam A. Denyer, Drumright, for plaintiffs in error Mobley and others.

Tom Wallace, Everett S. Collins, Sapulpa and DeWayne Hays, LeRoy Powers, Oklahoma City, for defendant in error and respondent W. C. Bonney.

ARNOLD, Vice Chief Justice.

These two cases, consolidated here for the purpose of review, present separate appeals, one by the County Treasurer of Creek County and the other by certain property owners of the city of Sapulpa, from an order and judgment of the District Court of Creek County in Cause No. 25,877 on the docket of that court wherein W. C. Bonney was plaintiff and P. J. Stephenson, County Treasurer, was defendant, same being a proceeding in mandamus.

Cause No. 25,877 was filed in the District Court of Creek County December 26, 1945, and on January 10, 1946, the property owners now appearing as appellants in Cause No. 33,084 in this court commenced an action in the Superior Court of Creek County for injunction against the County Treasurer. Both actions involved the collection of sewer assessments in Sewer District No. 7 in the City of Sapulpa. These two cases reached this court on original application of the plaintiff in No. 25,877 in the District Court for a writ of prohibition against the Superior Judge of Creek County to restrain further proceedings in that court on the gound of conflict of jurisdictions. This court granted the writ, State ex rel. Bonney v. Arthurs, 197 Okl. 215, 169 P.2d 561. In its opinion in that case this court determined that there was intolerable conflict in the jurisdiction of the two lower courts and suggested that the property owners, who were plaintiffs in the action in the Superior Court, might obtain any relief to which they were entitled by intervening in Cause No. 25,877 in the District Court or by instituting an independent action therein. Pursuant to this suggestion by this court, the property owners made application to the District Court to intervene in Cause No. 25,877. Leave was granted and they filed their petition in intervention therein. In their petition in intervention the property owners assailed the validity of the sewer assessment liens in Sewer District No. 7 on various grounds and further alleged that the lien of said sewer assessments was barred by limitations and laches. They asked that the writ of mandamus sought by plaintiff be denied, that the lien of said sewer assessments be cancelled, and that their respective titles to the property involved be quieted.

The County Treasurer filed a response to the alternative writ consisting of a general denial and a plea of the Statute of Limitations.

The facts with reference to the ownership of the sewer warrants, their nonpayment and the ownership of the properties covered by the sewer assessments by the interveners based upon tax titles and mesne conveyances from tax sale purchasers, were stipulated in writing and filed in the case. Upon trial of the cause and on motion of the plaintiff, Bonney, the court ordered the petition of interveners stricken and found the issues as to mandamus in favor of plaintiff and granted the writ. The County Treasurer appealed from the judgment granting the writ and his appeal here was docketed as No. 33,083. The appeal of the interveners was docketed here as No. 33,084. In our consideration and discussion of the questions presented here, the parties will be referred to as plaintiff, defendant, and interveners as they appeared in the trial court.

Defendant and interveners have filed a joint brief in this court. Their argument in behalf of interveners in No. 33,084 being first presented and thereafter followed by argument in behalf of defendant in No. 33,083. We will follow the form of this presentation of the two cases hereafter.

Upon the trial of the case, and in addition to the facts stipulated by the parties, the trial court took judicial notice of its own records and from them found: 'It appears from the records in this court that for twenty years there has been a constant fight against the collection of these assessments. If I am not mistaken, this matter has been through the courts and through the Supreme Court about four times in the last twenty years, the property owners standing in the way of the collection of the assessments and permitting their property to accumulate delinquent ad valorem taxes so that the property could be sold for ad valorem taxes and tax deeds issued in the hope that such deeds would cancel out the sewer assessments. In the first case to go to the Supreme Court, the question as to the legality of the sewer bonds was threshed out and decided by the high court that the bonds were in all respects legal but that didn't stop the litigation.'

There is no contention by interveners in their brief that this finding of the trial court based upon its own records is incorrect in any respect. The sole contention here is based upon this proposition: 'The legal effect of the sale of their property for delinquent ad valorem tax foreclosed and discharged the claimed sewer liens.'

It is pointed out that there is a distinction between the quality of the sewer assessment lien and the quality of a street improvement lien in that the latter is made coequal with ad valorem taxes, while the former is not. Upon this distinction in the quality of the two liens interveners contend that the rule adopted by this court in relation to street improvement liens to the effect that a sale for ad valorem taxes, without including therein street improvement liens, does not cancel the latter, is not applicable to sewer assessment liens. We think this distinction between the two classes of liens is not controlling or even material here when the language of the two statutes involved are considered and compared. As to street improvement assessments, it is provided by 11 O.S.1941 § 106, that delinquent installments shall be certified to the County Treasurer and ...