STATE v. SANDERS

STATE v. SANDERS
1956 OK 262
304 P.2d 287
Case Number: 37094
Decided: 10/02/1956
Supreme Court of Oklahoma

STATE OF OKLAHOMA EX REL. OKLAHOMA EMPLOYMENT SECURITY COMMISSION, PLAINTIFF IN ERROR,
v.
LEO SANDERS, DEFENDANT IN ERROR.

Syllabus by the Court.

¶0 1. Interest in recoverable on judgment against the state, for refund of overpayment of unemployment taxes to Oklahoma Employment Security Commission, from and after the date of said judgment, at the legal rate.

Appeal from the District Court of Oklahoma County; A.P. Van Meter, Judge.

Upon spreading mandate of Supreme Court of Record, Leo Sanders, as plaintiff, was awarded interest from date of judgment to date of payment by the defendant, State of Oklahoma ex rel. Oklahoma Employment Security Commission, on amount of adjudicated overpayment, said original judgment having been affirmed on appeal. Defendant appeals. Affirmed.

Milton R. Elliott and Burton Duncan, Oklahoma City, for plaintiff in error.

Withington, Shirk, Nichols & Clifford, Oklahoma City, for defendant in error.

DAVISON, Justice.

¶1 This appeal presents the question of allowance of interest on a judgment for refund of unemployment taxes which said judgment was heretofore affirmed by this court on the merits of the issues. No. 36,699, Oklahoma Emp. Sec. Comm. v. Sanders, Okl., 272 P.2d 379. Leo Sanders, as plaintiff, filed an action in the District Court of Oklahoma County, Oklahoma, against the defendant, State of Oklahoma ex rel. Oklahoma Employment Security Commission, which was in the nature of an appeal from an adverse order of said commission on his application for refund of a part of the unemployment taxes theretofore paid by him. The parties will be referred to as they appeared in the trial court.

¶2 Plaintiff, in April 1944, filed with the defendant, Employer's Quarterly Adjustment Reports for each of some seven previous annual quarters, alleging error in the amount of taxable wages reported and in the rate of contribution charged. After denial of the refund by defendant, plaintiff filed the appeal in said district court where judgment was rendered for him in the amount of wages reported but denying any refund based upon the alleged error in the rate of computation. Both parties appealed.

¶3 After affirmance of the judgment by this court and issuance of mandate, the trial court ordered it and the defendant paid the principal amount of said judgment on July 16, 1954. Thereafter, on May 23, 1955, upon motion of plaintiff, the trial court determined that plaintiff was entitled to interest at the rate of 6% per annum on the amount of said judgment from the date of its rendition, February 14, 1952, to the date of its payment, July 16, 1954. From that order and judgment, the defendant has perfected this appeal.

¶4 Defendant contends that the court erred in ordering the payment of interest because of the appeal by both parties from the judgment for refund. The argument in support of the contention is founded upon the statement in the case of Harden v. Harden, 191 Okl. 698, 130 P.2d 311, to the effect that,

"Where both parties appeal from a judgment,
interest will not be allowed on the judgment, pending
appeal, because both parties are responsible for
delay in the payment thereof. This seems to be the
rule where money judgments only are involved and
there is no contract calling for interest. 33 C.J.
247."

However, the quoted statement was obiter dicta and the allowance of interest on the judgment there was directed.

¶5 Much the same proposition as here was considered in the case of State ex rel. Com'rs of Land Office v. Warden, 206 Okl. 223, 242 P.2d 129, wherein was held that

"Interest is recoverable on judgment against state
from and after its date at legal rate. 15 O.S. 1941 §
274 [15-274]."

¶6 In the cited case the Harden case was discussed and quoted, with reference to limitation of the rule here relied upon, as follows:

"`But it is subject to the rule * * * that the
question of suspension of interest pending appeal is
largely determined by the character of the case and
the result of the appeal.'"

See also the reference to the Harden case in the case of M.E. Trapp Associated v. Tankersley, 206 Okl. 118, 240 P.2d 1091.

¶7 The reasoning in the Warden case is determinative of the proposition here presented. Defendant takes the position that the Warden case, being one involving equity or accounting in equity, differed from the case at bar, which by statute,

"The procedure in force at the time this action was
commenced was substituted for action by injunction,
yet, a proceeding under section 9971, C.O.S. 1921, to
recover taxes paid under protest, is in its nature
equitable."

¶8 By the provisions of

¶9 With that contention we do not agree. The statute does prohibit the recovery of interest on the overpayment but where the judgment is rendered the situation parallels that in the Warden case, supra, in that the defendant or tax collecting agency has in its hands a sum of money consisting of two items. One is the amount of legal taxes paid, to which it is entitled. The other is a sum of money belonging to plaintiff which defendant has no right to withhold from him any longer. Many of the elements of an accounting are involved here the same as in the Warden case. In any event, the same reason applies herein and the trial court's order requiring the payment of interest on the judgment from its rendition to its payment was correct.

¶10 The judgment is affirmed.

¶11 WILLIAMS, V.C.J., and WELCH, CORN, HALLEY, BLACKBIRD, JACKSON and CARLILE, JJ., concur.