174 F.2d 339 | 10th Cir. | 1949
This case was before this court on a previous appeal, Gulf Coast Western Oil Co.
[L 2] 12 Okl.St.Ann. § 95, provides that an action for relief on the ground of fraud must be brought within two years after the cause of action shall have accrued, but that the cause of action shall not be deemed to have accrued until the discovery of the fraud. The judgment in the state court action was not void, but merely voidable. Section 95, supra, applies to actions brought to set aside a judgment on the ground of fraud.
Where the defrauding party has not concealed the fraud, the statute of limitations begins to run on discovery of the fraud, or at the time it could have been discovered by the exercise of diligence.
Here, the disclaimer and entry of appearance was filed on or before March 13, 1939, when the judgment was entered in the state court action. The application to amend was filed February 26, 1948.
Where the action is commenced more than two years after the alleged fraudulent acts occurred, the burden is on the plaintiff to allege and prove that the fraud was not discovered until within the statutory period before the commencement of the action.
It follows that the alleged cause of action set up in the proposed amendment was barred.
Affirmed.
Hereinafter called the Oil Company.
Hereinafter called Mutual Royalty.
Hereinafter called National.
The name of grantee is not alleged.
Kauffman v. McLaughlin, 189 Okl. 194, 114 P.2d 929, 930; Harjo v. Johnston, 187 Okl. 561, 104 P.2d 985, 994; Stauffer v. Watts, 73 Okl. 68, 174 P. 1031, 1033; City of Guthrie v. McKennon, 19 Okl. 306, 91 P. 851, 853.
Guaranty Trust Co. v. York, 326 U. S. 99, 108, 109, 65 S.Ct. 1464, 89 D. Ed. 2079, 160 A.L.R. 1231.
Farmers State Bank of Ada v. Keen, 66 Okl. 62, 167 P. 207, 209; Harris v. Smith, 149 Okl. 277, 300 P. 392; Bankers’ Mortgage Co. v. Leisure, 172 Okl. 170, 42 P.2d 863, 864, 865; Mansfield, Brunson, Kemp & Ahrens v. King, 160 Okl. 243,16 P.2d 87, 89.
Brictson v. Woodrough, 8 Cir., 164 F. 2d 107, 110; Micco v. Foster, 183 Okl. 89, 80 P.2d 229, 230; Martin v. Gassert, 40 Okl. 608, 139 P. 1141, 1143; Larimer v. Knoyle, 43 Kan. 338, 23 P. 487, 491; Young v. Whittenhall, 15 Kan. 580, 581.
The Oklahoma statute of limitations was adopted from Kansas subsequent to the Kansas decisions above cited. In Martin v. Gassert, supra, the court held that the Kansas decisions decided before the adoption of § 95, supra, from the Kansas statutes, were controlling.