Young v. Kirk

• Decision Date: 07 June 1955
• Docket Number: No. 36151,36151
• Citation: 292 P.2d 1009,1955 OK 177
• Parties: W. A. YOUNG et al., Plaintiffs in Error, v. Juanita KIRK, County Treasurer of Okmuigee County, State of Oklahoma, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 1009

292 P.2d 1009

1955 OK 177

W. A. YOUNG et al., Plaintiffs in Error, v. Juanita KIRK, County Treasurer of Okmuigee County, State of Oklahoma, Defendant in Error.

No. 36151.

Supreme Court of Oklahoma.

June 7, 1955.

Rehearing Denied Jan. 31, 1956.

Syllabus by the Court

1. The provisions of 11 O.S.1951 § 242, are applicable to foreclosure of special assessment liens by tax sale and resale as well as by civil actions, and mandamus action to compel tax sale which is not commenced within time therein provided is barred by limitations.

2. The doctrine of laches may apply to the enforcement of a writ of mandamus where the parties in interest for whose benefit the writ was granted make no effort for an unreasonable length of time to bring about such enforcement. What constitutes laches must be determined by the facts and circumstances of each individual case.

3. Where owners of Street Improvement Bonds issued under Chapter 10, Article 12, Oklahoma Revised Laws of 1910, obtained writ of mandamus on June 4, 1942, to compel County Treasurer to enforce special assessment liens by tax sale and made no effort by exercise of available remedies to force obedience to the writ, but file new mandamus action in March, 1952, the validity of original writ is lost by laches and new action is barred by Statute of Limitations and writ is properly denied.

Appeal from the District Court of Okmulgee County; Jesse I. Miracle, Judge.

Action in mandamus by owners of Street Improvement Bonds under authority of Chapter 10, Article 12, Oklahoma Revised Laws of 1910, against County Treasurer to compel enforcement of special assessment liens by tax resale. From judgment denying writ, plaintiffs appeal. Affirmed.

G. R. Horner, Okmulgee, for plaintiffs in error.

Edgar R. Boatman, County Atty. of Okmulgee County, Okmulgee, for defendant in error.

JACKSON, Justice.

On November 25, 1940, the owners of the Street Improvement Bonds of Street Improvement District No. 52 in the City of Okmulgee, brought a mandamus action in the Superior Court of Okmulgee County against the then County Treasurer, E. L. Roberts, for a writ of mandamus directing the County Treasurer to advertise and sell at the annual tax resale, all of the lots in said District against which there remained any unpaid installments on street improvement levies.

The bonds in question, dated August 15, 1922, were issued under authority of Chapter 10, Article 12, Oklahoma Revised Laws of 1910, and were payable on or before ten years from date.

In that case the trial court granted a peremptory writ of mandamus directing the County Treasurer to advertise and sell at the next annual resale for taxes to be held in Okmulgee County on the second Monday in May, 1941, all of the lots involved. The County Treasurer appealed from that judgment to the Supreme Court (No. 30373) and the judgment of the trial court did not become final until that appeal was dismissed by stipulation on June 4, 1942, which was after the date fixed in the writ for the tax resale. The record does not disclose that an alias writ was applied for and none was issued.

Neither Mr. Roberts, nor his successor in office, who is the defendant in this action, has sold any of the property in said District No. 52, except two lots which were sold in the 1950 tax resale.

On March 22, 1950, one of the owners of some of the bonds involved herein filed a new action in the Superior Court of Okmulgee County seeking a writ of mandamus directing the County Treasurer to sell the lots in this district at tax resale. That action was dismissed before judgment was rendered.

The present was commenced in the District Court of Okmulgee County on March 5, 1952. Some of the parties plaintiff in this action were not parties plaintiff in the previous actions, but the same bonds and the same property in Improvement District No. 52 are involved and here, as in the previous actions, the plaintiffs sue for a writ of mandamus directing the County Treasurer to advertise and sell at tax resale the lots in said district on which there remains unpaid installments on the special levies for street improvements.

In this case the District Court denied the writ and plaintiffs bring this appeal.

It was contended by the defendant that long previous to the commencement of this action, the lien of the unpaid street improvement bonds in said District No. 52 had expired, and the remedies for the enforcement of said lien had ceased to exist and had been lost by laches.

By the provisions of 11 O.S.1951 § 242, which was enacted and became effective May 12, 1939, the liens securing payment of these bonds would expire and any action on the bonds would be barred after December 1, 1940, except for the provision in the act that 'the holder of such bonds shall have until December 1, 1940, in which to pursue his remedy or obtain the benefits of this Act.'

Plaintiffs contend that since there was a mandamus action commenced before December 1, 1940, the limitation of action contained in the 1939 Act is not applicable to these bond owners, because the Act plainly says in effect that the bringing of an action of mandamus prevented the Statute of Limitations from commencing to run.

Why the plaintiffs elected to file a new action for a writ of mandamus instead of attempting to enforce a writ that had previously been granted in another action for the same purpose, is not clear to the...