Summary
In Hynds v. City of Ada, 195 Okla. 465, 158 P.2d 907, the plaintiff made no allegation of compliance but proved compliance without objection on the part of the defendant, and this court held that the pleadings would be considered amended to conform to the proof.
Summary of this case from Jones v. C.L. Frates Co.Opinion
No. 31020.
May 22, 1945.
(Syllabus.)
1. APPEAL AND ERROR — TAXATION — Pleadings considered amended to conform to proof of compliance with intangible tax law.
Where at the time the action is filed the property involved in the suit is subject to listing under the provisions of the intangible tax law, 68 O.S. 1941 § 1501[ 68-1501] et seq., and there is no allegation in the petition of the payment of the taxes as provided therein, but during the trial there is introduced evidence without objection that the property involved was assessed, and the taxes paid, in accordance with the provisions of said sections, the plaintiff has proved a compliance with the terms of said sections and the pleadings will be considered as amended to conform to the proof.
2. ARMY AND NAVY — Sufficiency of affidavit of nonmilitary service of defendants in compliance with Soldiers' and Sailors' Civil Relief Act.
Where an affidavit in compliance with the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A. Appendix, § 520 et seq., has been filed in which it is stated that the affiant is unable to say whether the defendants are engaged in military service, the same is a substantial compliance with the requirements of said sections and a judgment entered by the trial court after the examination of the affidavit is not subject to attack in the absence of a showing that the judgment was rendered in prejudice to a member of the military service of the United States as described in said sections.
3. LIMITATION OF ACTIONS — Action by holder of paving bonds not barred if commenced within three years after due date of last installment.
An action by a holder of paving bonds issued by a municipal corporation commenced within three years after the due date of the last installment thereon is not barred by 12 O.S. 1941 § 95[ 12-95], subd. 2.
Appeal from District Court, Pontotoc County; Tal Crawford, Judge. Action by City of Ada on relation of Lizzie Mitchell against J. C. Hynds, et al., to recover the amount due on paving assessments on bonds series No. 28. From a judgment for the plaintiff, defendants appeal. Affirmed.
C.F. Green and H.F. Mathis, both of Ada, for plaintiffs in error.
Hobert G. Orton and Claude V. Thompson, both of Ada, for defendants in error.
On the 27th day of May, 1940, Lizzie Mitchell filed her petition under the provisions of 11 O.S. 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 O.S. 1941 § 107[11-107] is barred by the statute of limitation. This contention is without substantial merit. In City of Bristow v. Groom, 194 Okla. 384, 151 P.2d 936, this court held that the action accrues to the holder of the bonds under said section a year from the date the final assessment becomes delinquent. The final assessment became due in the case at bar September 1, 1938. The action was brought the 27th day of May, 1940, clearly within time under the holding of that case. See, also, Town of Medford v. Early, 194 Okla. 566, 153 P.2d 633.
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 O.S. 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 O.S. 1941 § 1501[ 68-1501] et seq., the introduction of evidence cured the defect and the pleadings will be considered amended to conform to the proof. Riddle v. Brann, 191 Okla. 596, 131 P.2d 999; Buckholts v. Wright, 186 Okla. 230, 97 P.2d 44; Ward v. Coleman, 170 Okla. 201, 39 P.2d 113; Lamb v. Ulrich, 94 Okla. 240, 221 P. 741; St. L.-S.F.R. Co. v. Simmons, 116 Okla. 126, 242 P. 151; Phelps v. Malone, 193 Okla. 239, 142 P.2d 849. The failure of the cross-petitioner to make the payment for 1940, assuming that it had to be made prior to the filing of a petition by Fowler, cannot affect the right of the plaintiff to proceed to judgment in the name of Lizzie Mitchell, the original relator in the proceeding. Assuming the bonds are subject to taxation under the intangible tax law, there was no error in the rendition of the judgment in the case at bar for failure to comply with the terms and provisions of 68 O.S. 1941 § 1501[ 68-1501], et seq.
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., 53 F. Supp. 1015; Mims Bros. v. James, Inc., (Tex. Civ. App.) 174 S.W.2d 276; McArthur v. Shaffer, 59 Cal.App. 724, 139 P.2d 959; Briner v. Briner, 60 Cal. A.2d 473, 140 P.2d 995; B. B. Sulphur Co., Ltd., v. Kelly, 61 Cal. A.2d 3, 141 P.2d 908; Arenstein v. Jencks (Tex. Civ. App.) 179 S.W.2d 831. The act above referred to is for the exclusive benefit of service men therein included, and they alone can take advantage of it, and then only upon a showing that their interest has been prejudically affected. Mims Bros. v. James, Inc., supra; B. B. Sulphur Co., Ltd., v. Kelley, supra; Arenstein v. Jencks, supra. A default judgment taken without the proper affidavit under said section is not void but merely voidable at the instance of a service man on proper showing of prejudice and injury. Mims Bros. v. James, Inc., supra.
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.