DocketNumber: No. 31020.
Citation Numbers: 158 P.2d 907, 195 Okla. 465
Judges: Gibson, Hurst, Riley, Osborn, Welch, Corn, Arnold, Davison
Filed Date: 5/22/1945
Status: Precedential
Modified Date: 10/19/2024
On the 27th day of May, 1940, Lizzie Mitchell filed her petition under the provisions of 11 Ohio St. 1941 § 107[11-107] to enforce the special assessments of liens for street improvements represented by bond series No. 28 of the city of Ada. During the proceeding T.G. Fowler filed a cross-petition alleging that he was the owner and holder of bond No. 42 in the sum of $500. A trial to the court resulted in a judgment for the plaintiff in the sum of $20,267.16, together with interest thereon at the rate of 6 per cent per annum from the 27th day of May, 1940. Defendants appeal.
The first contention made by the defendants is that the action under 11 Ohio St. 1941 § 107[11-107] is barred by the statute of limitation. This contention is without substantial merit. In City of Bristow v. Groom,
It is next argued that the court was without jurisdiction to render judgment for the reason that there was no allegation in the petition that the intangible property tax had been assessed and paid as provided by 68 Ohio St. 1941 § 1515[68-1515]. There was no allegation in the petition filed by Lizzie Mitchell of the payment of the property tax. During the proceedings at the trial, and without any objection on the part of any defendant, Lizzie Mitchell introduced the assessment sheets showing the assessment and payment of all intangible property taxes due on her specific bonds. The cross-petitioner, Fowler, introduced assessment sheets showing that his bond had been assessed for every year. He did not show that there was a payment of the last taxes due in 1940 although the assessment of the intangible property tax had been made therefor.
Although there was no allegation in the petition of the assessment and payment of the taxes in compliance with 68 Ohio St. 1941 § 1501[
Finally it is argued that the court was without jurisdiction to enter a judgment because no proper affidavit of nonmilitary service was filed in compliance with the Soldiers and Sailors' Relief Act of 1940, sec. 200, 50 U.S.C.A. Appendix, sec. 520 et seq. Apparently this court has not passed upon the procedure involved in the congressional enactment above referred to. Other courts, including the federal courts, have done so. In re Realty Associates Securities Corp.,
The affidavit in the case at bar was made under the provisions of the paragraph relating to the disclosure by affidavit that the plaintiff (in the case at bar, the relator) was unable to state whether or not the defendants were in the military service. This is a substantial compliance with the law under the above cases. There is no showing that any defendant is in the military service within the purview of 50 U.S.C.A. Appendix, § 520 et seq. After an examination of the affidavit the court was authorized to enter the judgment in behalf of relator.
The judgment is affirmed.
GIBSON, C.J., HURST, V.C.J., and RILEY, OSBORN, WELCH, CORN, and ARNOLD, JJ., concur. DAVISON, J., not participating.
Lamb v. Ulrich , 94 Okla. 240 ( 1923 )
St. Louis-S. F. Ry. Co. v. Simmons , 116 Okla. 126 ( 1925 )
Phelps v. Malone , 193 Okla. 239 ( 1943 )
Riddle v. Brann , 191 Okla. 596 ( 1942 )
Buckholts v. Wright , 186 Okla. 230 ( 1939 )
Ward v. Coleman , 170 Okla. 201 ( 1934 )
Arenstein v. Jencks , 1944 Tex. App. LEXIS 690 ( 1944 )
In Re Realty Associates Securities Corporation , 53 F. Supp. 1015 ( 1944 )
Mims Bros. v. N. A. James, Inc. , 1943 Tex. App. LEXIS 556 ( 1943 )
City of Bristow Ex Rel. Hedges v. Groom , 194 Okla. 384 ( 1944 )
Town of Medford Ex Rel. Fuss v. Early , 194 Okla. 566 ( 1944 )