Opinion No. 69-113 (1969) Ag ( 1969 )

Court Clerk — Fees — Indian Heirs — Conveyances Proceedings to approve deeds of restricted Indian heirs or devisees as provided by 58 O.S. 901 [58-901] (1961) et seq., proceedings to determine heirs of restricted Indians as provided by 84 O.S. 251 [84-251] (1961) et seq., proceedings to confer rights of majority on a minor as provided by 10 O.S. 91 [10-91] (1961) et seq., and proceedings to change the name of a person as provided in 12 O.S. 1613 [12-1613] (1961) et seq., are classified by the designation "All others" as provided in 28 O.S. 152 [28-152] (1968), and, accordingly, the proper filing fee to be charged by the court clerk in such proceedings is $10.00 The Attorney General has had under consideration your letter of January 15, 1969, wherein you, in effect, ask the following question: What costs are to be charged by the Court Clerk under 28 O.S. 152 [28-152] (1968), regarding the filing of the following proceedings, to-wit: a. Approval of deeds of adult full blood Indians conveying inherited lands as provided by 58 O.S. 1961 Section 901[58-901] [58-901] et seq. b. Determination of heirs of restricted Indians as provided by 84 O.S. 1961 Section 251[84-251] [84-251] et seq. c. The conferring of rights of majority on minors as provided by 10 O.S. 91 [10-91] (1961) et seq. d. The changing of the name of a person by 12 O.S. 1961 Section 16.31[12-16.31] [12-16.31] et seq. Title 28 O.S. 152 [28-152] (1968), provides in part, as follows: "In any civil action filed in District Court after the effective date of this Act, the court clerk shall be required to collect, at the time of filing, the following flat fees, none of which shall ever be refundable, and which shall be the only charge for court costs up to and including the entry of judgment, except as is herein otherwise specifically provided: Actions for divorce, alimony without divorce, separate maintenance, custody or support ...... $15.00 Probate and guardianship ....................... 25.00 Judicial Determination of Death ................ 20.00 Adoption ....................................... 15.00 Civil Actions .................................. 20.00 All others, including actions for forcible entry and detainer ................... 10.00" The term "civil action" in the first line of the first sentence of section 152 is used to include all special proceedings and actions except criminal actions, while the term "civil actions" as used in the body of the quoted schedule excludes criminal actions, special proceedings and civil actions specified and all other special proceedings. Title 12 O.S. 3 [12-3] (1961), provides as follows: "Remedies in the courts of justice are divided into: First, Actions. Second, Special proceedings." Title 12 O.S. 4 [12-4] (1961), provides as follows: "An action is an ordinary proceedings in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Title 12 O.S. 5 [12-5] (1961), provides as follows: "Every other remedy is a special proceeding." Title 12 O.S. 6 [12-6] (1961), provides as follows: "Actions are of two kinds: First, Civil, Second, Criminal." Title 12 O.S. 7 [12-7] (1961), provides as follows: "A criminal action is one prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof." Title 12 O.S. 8 [12-8] (1961), provides as follows: "Every other is a civil action." It would appear that an action, not criminal, and not specifically mentioned in the quoted schedule would be included under the designation "Civil Actions". Special Proceedings, not specified, would be classified under the designation "All others." The proceedings mentioned in your question are "special proceedings" under the Oklahoma Statutes above mentioned. They are not "actions" since no party is, in fact, prosecuting any other party as provided in 12 O.S. 4 [12-4] (1961). It is, therefore, the opinion of the Attorney General that proceedings to approve deeds of restricted Indian heirs or devisees as provided at 58 O.S. 901 [58-901] (1961) et seq., proceedings to determine heirs of restricted Indians as provided by 84 O.S. 251 [84-251] (1961) et seq., proceedings to confer rights of majority on a minor as provided by 10 O.S. 91 [10-91] (1961) et seq., and proceedings to change the name of a person as provided by 12 O.S. 1631 [12-1631] (1961) et seq., are classified under the designation "All others" as provided in 28 O.S. 152 [28-152] (1968), and accordingly, $10.00 is the proper filing fee in such proceedings. (W. Howard O'Bryan Jr.)