2. Same — Cases Overruled. In so far as they hold or indicate a rule contrary to paragraph one of this syllabus, we expressly overrule the former opinions in El Reno Wholesale Grocery Co. v. Taylor, 87 Okla. 140, 209 P. 749; Sinclair Prairie Pipe Line Co. v. Tulsa County Excise Board, 173 Okla. 375, 49 P.2d 114, and Protest of St. L. S. F. Ry. Co., 182 Okla. 522, 78 P.2d 806. And we expressly disapprove the contrary dicta in the former opinions in Adjustment Realty Co. v. Muskogee County Excise Board, 141 Okla. 130, 284 P. 27; In re Monsell, 142 Okla. 130, 285 P. 836, and Protest of Oklahoma Pipe Line Co., 147 Okla. 163, 296 P. 406.
Defendants are correct in their statement that the above statute does not apply to resale tax deeds. Schuman v. Board of County Commissioners, etc., 163 Okla. 118, 21 P.2d 40; Sinclair Prairie Pipe Line Co. v. Excise Board of Tulsa Co., 173 Okla. 375, 49 P.2d 114. And we agree that there is no statutory authority for the maintenance of a suit against the county for the recovery of money paid for a void resale tax deed. We also agree that the contract which the law implies in case of money had and received is not of that character which the county is authorized by statute to execute or to consummate.
Some extant jurisprudence holds that a county attorney may not agree to a judgment against a county and that a judgment based upon a county's answer which confesses judgment, or facts on which the claim is based, will not withstand a collateral attack. See, e.g., Sinclair Prairie Pipe Line Co. v. Excise Board, 173 Okla. 375, 49 P.2d 114, 119 (1935); Protest of Kansas City Southern Ry. Co., 157 Okla. 246, 11 P.2d 500, 504 (1932). But see Choctaw County Excise Board v. St. Louis-San Francisco Ry. Co., Okla., 456 P.2d 545, 547-548 (1969), where the court confines these earlier holdings to cases in which there was a lack of in personam jurisdiction over the county.We need not decide today whether counsel's concessions on legal points are binding upon County here.
A county attorney may not agree to a judgment against a county. Protest of Kansas City Southern Ry. Co., 157 Okla. 246, 11 P.2d 500. An answer filed by a political subdivision of state government which confesses judgment, or the facts upon which the claim is based, will not withstand a collateral attack. Sinclair Prairie Pipe Line Co. v. Excise Board of Tulsa County, 173 Okla. 375, 49 P.2d 114. A default judgment has been defined as a judgment rendered in consequence of the non-appearance of the defendant.
Such a judgment cannot be collaterally attacked. Standish Pipe Line Co. et al. v. Oklahoma County Excise Board, 187 Okla. 245, 102 P.2d 606; Sinclair Prairie Pipe Line Co. v. Excise Board of Tulsa Co., 173 Okla. 375, 49 P.2d 114; Faught v. City of Sapulpa, 145 Okla. 164, 292 P. 15. See, also, Protest of Kansas City Southern Ry. Co., 157 Okla. 246, 11 P.2d 500. In the action to obtain the judgment against consolidated school district No. 2 the plaintiff therein set forth six causes of action, and in the action against school district No. 4 the plaintiff set up one cause of action; in each cause of action in both suits it was alleged that at the time the contract was entered into and at the time the goods, wares, and merchandise were sold and delivered or services rendered, there was on hand, duly appropriated, an unexpended amount of money sufficient to pay the claim in full, but that subsequent thereto the funds became exhausted and the claim was disallowed for want of funds. It was further alleged as to each that a certificate of the county clerk of Seminole county, Okla., showing the bonded indebtedness, the legal indebtedness exclusive of the bonded indebtedness, the amount of this claim, and the amount
Protest of St. Louis S. F. Ry. Co., 157 Okla. 131, 11 P.2d 189. Such presumptions, however, have not been allowed to prevail in cases wherein judgments have been taken against subdivisions of the state when the whole record discloses that there has not been a bona fide trial of the cause and no bona fide defense made, and when a combination of circumstances is shown amounting to collusion, legal fraud, and disregard of law. See Sinclair Pipe Line Co. v. Tulsa County Excise Board, 173 Okla. 375, 49 P.2d 114; In re Gypsy Oil Co., 141 Okla. 291, 285 P. 67, and other cases of similar effect and conclusion. This judgment roll discloses the following: Plaintiff's petition is based upon various items of football supplies and equipment sold to the school district; approximately one-half thereof had been sold from seven to nine years prior to bringing of suit.
* * *" In the case of Sinclair Prairie Pipe Line Co. v. Excise Board of Tulsa County, 173 Okla. 375, 49 P.2d 114, it was held: "Where a political subdivision of the state is sued in a court of competent jurisdiction having jurisdiction of the subject matter of the action, and that political subdivision is brought before the court by proper service of summons, or if it files its answer, which, by its terms, contests the claim and in no wise confesses the claim or the facts upon which the claim is based, and the court renders a judgment thereon within its jurisdiction, that judgment unappealed from is binding and conclusive upon the political subdivision of the state and upon the taxpayers thereof, subject only to the right to have the same vacated, set aside, or held for naught in a proper proceeding.
This question has never before been presented to this court. The cases relied on by the county (Schuman v. Board of County Com'rs of McIntosh County (1933) 163 Okla. 118, 21 P.2d 40, and Sinclair Prairie Pipe Line Co. v. Excise Board of Tulsa County (1935) 173 Okla. 375, 49 P.2d 114), concern actions by the holders of invalid tax deeds seeking refunds and are inapplicable to the present situation wherein the county is the actor seeking affirmative relief in equity. Moreover, the deed involved in the instant case is not a resale tax deed, but a commissioner's deed, where the county retains all the purchase money received therefor, and thus the reasons for denying a refund expressed in the Schuman Case are not pertinent here. Although Airy v. Thompson (1931) 154 Okla. 1, 6 P.2d 445, involves a commissioner's deed, the case is not applicable here, for the question there was whether the statute required a tender by plaintiffs, who were certain taxpayers suing to cancel the deed.
Thus no court could render a valid judgment without such showing. Board of Education, District 15, Ottawa County, v. Castle, 168 Okla. 399, 33 P.2d 190, and Sinclair, etc., v. Excise Board of Tulsa County, 173 Okla. 375, 49 P.2d 114. We think it is clear from what we have said that such a showing must be made in this case.
See Faught v. City of Sapulpa, 145 Okla. 164, 292 P. 15. The journal entry does not show that any testimony was introduced relative to the indebtedness sued upon being within the income and revenue provided for that fiscal year for that purpose. Sinclair Prairie Pipe Line Co. v. Excise Board of Tulsa County, 173 Okla. 375, 49 P.2d 114. Indeed it is evident such was not pleaded or proved, nor could it have been, since the plaintiff himself stipulated and agreed in this lawsuit that the "appropriation for this purpose was exhausted at the time this claim was made and at the time the services were rendered." In effect the trial court found that the judgment constituting the basis of this mandamus action was void, and consequently the plaintiff was not entitled to have same paid by compelling the excise board to now make an appropriation and levy a tax to pay same.