Opinion
No. 31405.
November 14, 1944.
(Syllabus.)
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 a "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, McIntosh County; R.W. Higgins, Judge.
Action by the City of Checotah ex rel. Fletcher Hall and another against Jack W. Lucas et al. Judgment for plaintiff, and named defendant appeals. Reversed and remanded.
Roy White and Hugh A. White, both of Eufaula, for plaintiff in error.
Britton H. Tabor, of Checotah, for defendant in error.
This appeal involves the correctness of the judgment of the district court of McIntosh county refusing to apply the defense of statute of limitations raised by Jack W. Lucas to the action brought in the name of the city of Checotah, on behalf of street improvement bondholders, to foreclose the lien of delinquent annual assessments.
The street improvement district was created in 1925 under authority of chapter 173, S.L. 1923, 11 O. S. 1941 §§ 81-113. The last assessment installment became due in 1934 and the bonds matured then. There are delinquent the installments due for the years 1928 to 1934, inclusive. The action was filed in 1940.
Our decision in City of Bristow v. Groom, 194 Okla. 384, 151 P.2d 936, disposes of the issue under consideration in favor of Lucas. No occasion exists for repeating here what was said in that decision. The three-year statute, 12 O. S. 1941 § 95 (2), began to run twelve months after the bonds matured in 1934, and had run before this action was filed.
The judgment appealed from is reversed and the cause is remanded for further proceedings consistent herewith.
CORN, C.J., and RILEY, OSBORN, WELCH, HURST, and DAVISON, JJ., concur. GIBSON, V.C.J., dissents.