Opinion
No. 31059.
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, Harmon County; John B. Wilson, Judge.
Action by the City of Hollis ex rel. James P. Shannon against B. F. Whorton et al. Judgment for plaintiff, and defendants appeal. Affirmed.
C.H. Madden, of Hollis, for plaintiffs in error.
Norman E. Reynolds and W. Otis Ridings, both of Oklahoma City, for defendants in error.
B.F. Whorton et al. appeal from a judgment of the district court of Harmon county foreclosing the lien of delinquent assessments levied in connection with a street improvement district. The action was brought on relation of the city of Hollis for the benefit of the bondholders.
The district was created in 1926, under authority of chapter 173, S. L. 1923, 11 O. S. 1941 §§ 81-113, and the bonds were issued December 4, 1926. The annual installments of the respective assessments fell due September 1, 1927, and on the like month and day until September 1, 1936. The bonds matured October 1, 1936. The action was filed July 30, 1940.
The only issue presented to us is whether the action was barred by the statute of limitations when filed.
The rule announced in City of Bristow v. Groom, 194 Okla. 384, 151 P.2d 936, governs. We held (1) that the lien is subject to the limitations stated in 12 O. S. 1941 § 95(2), and (2) the cause of action arose when a delinquency as to the annual installments assessed for the payment of the bonds existed for a period of 12 months subsequent to the due date of the last annual installment.
In this case the last installment matured September 1, 1936, and at the lapse of 12 months thereafter there existed a delinquency as to the annual installments for several years. The cause of action arose September 1, 1937, and the suit being filed July 30, 1940, was filed before the action was barred.
The judgment is affirmed.
CORN, C.J., and RILEY, OSBORN, WELCH, HURST, and DAVISON, JJ., concur. GIBSON, V.C.J., dissents.