CITY of ARDMORE ex rel. DYER v. HOLT

CITY of ARDMORE ex rel. DYER v. HOLT
1944 OK 303
153 P.2d 228
194 Okla. 486
Case Number: 31065
Decided: 11/14/1944
Supreme Court of Oklahoma

CITY of ARDMORE ex rel. DYER
v.
HOLT et al.

Syllabus

¶0 LIMITATION OF ACTIONS--Three-year statute applicable to action to foreclose special assessment lien for street improvement--When cause of action accrues.
An action to foreclose a special assessment lien under 11 O. S. 1941 §107 is an action on "liability created by statute" and is barred after the expiration of three years from the accrual of the cause of action, under 12 O. S. 1941 §95 (2), and such action accrues on the assessment where (1) there is a delinquency after the due date of the last installment and (2) such delinquency continues for twelve months. City of Bristow v. Groom, 194 Okla. 384, 151 P.2d 936.

Appeal from District Court, Carter County; Marvin Shilling, Judge.

Action by the City of Ardmore ex rel. Kirk Dyer against Ulla Holt et al. Judgment for defendants, and plaintiff appeals. Affirmed.

Dolman, Dyer & Dolman, of Ardmore, for plaintiff in error and intervener.
Stephen A. George and Woodrow George, both of Ardmore, for defendants in error.

BAYLESS, J.

¶1 This appeal involves the correctness of the judgment of the district court of Carter county holding that city of Ardmore, on relation of the bondholders of a certain street improvement district, could not foreclose the lien of the delinquent assessments levied to pay said bonds because the action was barred by the statute of limitations.

¶2 The parties agree that the street improvement district was created in 1922; that the bonds were issued in August, 1922; that they matured in 1931, coincident with the due date of the tenth annual installment due on the assessments; that there was a delinquency on the assessments at that time and at all times since; and that this action was filed in October, 1940.

¶3 The parties have not raised or discussed the right to foreclose such a hen created prior to the enactment of chapter 173, S. L. 1923, under that act. Assuming, without deciding, that such a right exists, we are of the opinion that the action was barred by the statute of limitations at the time it was filed. The rule in City of Bristow v. Groom, 194 Okla. 384, 151 P.2d 936, controls this issue. It is not necessary to restate here what we said in that decision. The three-year period of limitation, 12 O. S. 1941 §95 (2), began to run twelve months after the due date of the last installment, and had run when the action was filed.

¶4 The judgment of the trial court is affirmed.

¶5 CORN, C.J., and RILEY, OSBORN, WELCH, HURST, and DAVISON, JJ., concur. GIBSON, V.C.J., dissents.