Beadles v. Smyser , 17 Okla. 162 ( 1906 )

Opinion of the court by

Burwell, J.:

This is an action of mandamus commenced by the plaintiff to compel the officers of the city of Perry to take steps looking toward the payment of some thirty-two judgments against that city which amount in all to something •over sixteen thousand dollars. All of these judgments were rendered more than six years prior to the commencement of this action, and are now owned by the plaintiff. No execution was ever issued on any of these judgments, nor have any of them been revived under the statute. The answer pleads the statute of .limitation, and this is really the only question involved in the case. .

It is contended by the defendant that under section 4337 of the Statutes of Oklahoma of 1893, the judgments involved in this action are dormant. It provides as follows:

"If the execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be render ed, in any court of record in this territory, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment' shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor/’

The court had occasion to construe this identical statute in the case of J. B. Beadles v. W. R. Fry, City Treasurer of the City of Perry, et al. 15 Okla, P. 428; and it- was therein held that this statute of limitation would run in favor of a city of the first class on a judgment against it unless the judgment creditor sue out an execution within' five years from the date of its rendition. It was also stated in that opinion that:

“Where a judgment creditor fails to have execution issued within five years on a judgment against a city of the first class, and also fails to revive such judgment within one year after it becomes dormant, it will be treated as barred by the statute of limitation, and the courts will deny the aid of mandamus to compel payment of the same.”

In that case as in this the plaintiff contended that the city council had passed a resolution approving an agreement entered into by all of the judgment creditors of the city, to the effect that all judgments should be paid in the order of their rendition. It is insisted that this contract and resolution took the judgments in question out of the statute of limitation, even if such statute would run in favor of a city which plaintiff denies. All of these questions were decided against the contentions of the plaintiff in the case referred to.

These and other questions were fully discussed in that opinion. Tho two cases involves exactly the same questions, and upon that authority the judgment of the lower court is hereby affirmed, at the cost of the appellant.

Hamer, J., who presided in the court below, not sitting: Pancoast, J., not sitting; all.the other Justices concurring.