The City of Clinton, and the City of New Cordell, in Oklahoma, levied assessments for street improvements in respective designated districts, and issued paving bonds payable solely out of the proceeds of the assessments. In each instance default was made in the payment of some of the bonds, and these six separate actions were filed by one or more individual owners of an unpaid bond or bonds, on the relatiоn of the city, to foreclose the lien. Five of the actions involved assessments made and bonds issued by the City of Clinton, and the sixth assessments made and bonds issued by the City of New Cordell. Each cause of action in the complaint in each case was against one or more separate defendants and involved one or more lots or parcels of land. In each instance the complaint allegеd the creation of the improvement district, the levying of the assessment, the issuance of the bonds, the default, plaintiffs’ ownership of the bond or bonds, and defendants’ ownership of the particular lots or tracts. The prayer was for the establishment and foreclosure of the assessment lien, the sale of the property, and the application of the proceeds to payment of costs, pаyment of the unpaid assessments, and payment of the balance, if any, to the clerk of the court to be held subject to the further order of the court. The answering defendants pleaded payment of the assessments, limitations, and nonownership of the bond or bonds by the individual plaintiffs.
The cases were submitted on stipulated facts. It was stipulated among other things that in certain specified instances bonds had beеn tendered and accepted in payment of assessments and the assessment liens cancelled of record. The court entered judgment in each case establishing *981 and foreclosing the assessment lien, reinstating the lien which had been cancelled on surrender of bonds, providing that the judgment in each instance might be paid in cash to the clerk of the city, directing that on such payment appropriate entries be made releasing the judgment and can-celling the assessment lien, providing that where payment was not made within six months the property be sold, providing that after payment of costs the proceeds be paid to the city treasurer and be by him used in retiring the bonds, and providing that the balance, if any, be paid to the clerk of the court subject to the further order of the court. Certain defendants in the several cases appealed.
The jurisdiction of the trial court is challenged for lack of diversity of citizenship. The complaint in each case alleged the residence and citizenship of the individual plaintiff or plaintiffs owning the particular bond or bonds in suit — in a state or states other than Oklahoma, and further that all of the defendants were residents and citizens of Oklahoma. But it is urged that the city wаs in each instance an indispensable party and therefore there was a want of diversity. Chapter 173, Laws of . Oklahoma 1923, 11 O.S.1941 § 81 et seq., provides a complete and comprehensive plan for the improvement of streets and alleys, and these assessments were made and these bonds issued under its provisions. Section 25 of the act, 11 O.S.1941 § 105, provides that after full payment of all bonds and interest the surplus remaining in the fund shall be used for the purpose of repair and maintenance of the improvement for which the assessments were made. While the assessments are primarily for the benefit of the holders of bonds, the city has an indirect and contingent pecuniary interest in them. But that contingent interest is limited to the surplus, if any, after full payment of the bonds. The city has no right either to penalties or interest until all owners of bonds havе been paid in full. Oklahoma City v. Vahlberg,
Generally in respect of the collection of the assessments the city has been called the trustee for all the bondholders. Service Feed Co. v. City of Ardmore,
In determining the question whether diversity of citizenship requisite to jurisdiction exists, a court looks to the citizenship of the real parties in interest; and where there is complete diversity between them, the presence of a nominal party with no real interest in the controversy will be disregarded. Jurisdiction is not ousted by the joinder or nonjoinder of mere formal рarties.. Wormley v. Wormley,
The jurisdiction of the court is further challenged for lack of the requisite amount in controversy. Each separate cause of action in each case was against one or more defendants, owner or owners of one or more lots or tracts assessed. In no single cause of action did the assessment against the lots or parcels exceed the sum of three thousand dollаrs. But in each complaint the assessment against the lots or tracts in the several causes of action *982 aggregated more than three thousand dollars, exclusive of interest and costs. Section 29, supra, empowers any holder of a bond to prosecute a suit to foreclose the lien. Such an action is a special proceeding as distinguished from an ordinary suit in equity to establish and foreclоse a lien. Morgan v. City of Ardmore, 182 Old. 542, 78 P.2d 785. The assessment is apportioned among the several lots or parcels of land, a specified sum being assessed against each lot or parcel, but the lien of the bondholders covers the entire district as a unit. Service Feed Co. v. City of Ardmore, supra; Davis v. McCasland, supra. The special foreclosure action proceeds in rem against all lots or pаrcels where the assessment has been delinquent for twelve months or more; and it may be prosecuted by any holder of a bond without joining as parties others similarly situated. Service Feed Co. v. City of Ardmore, supra. Although instituted by only one or more bondholders it is a class action for the benefit of the plaintiff or plaintiffs and all others in like situation. Service Feed Co. v. City of Ardmore, supra; Morgan v. City of Ardmore, supra.
It is a well recognized rule that two or more creditors having separate and distinct demands, each less than three thousand dollars but aggregating more than that sum, exclusive of interest and costs, cannot join their demands in an action in order to confer jurisdiction upon a United States Court. But in a class action of this kind the aggregate amount of the bonds, and the aggregate amount of the fund sought to be produced fоr the benefit of all bondholders by the establishment and enforcement of the assessment lien, is the yardstick with which to determine the question whether the requisite amount is in controversy, not the amount of the bond or bonds owned by plaintiff alone to the exclusion of other unpaid bonds belonging to other owners, or the amount of the assessment against the lots or lands of one defendant to the exclusion of that against оther lots or tracts in the improved district in different ownership. Brusselback v. Chicago Joint Stock Land Bank, 7 Cir.,
The next question is whether the actions were barred by limitations. In two of the cases the last installment of the respective assessments was due on or before September 1, 1934, the bonds were payable in numerical order on or before October 1, 1934, and the suits were filed in December, 1938, and May, 1939, respectively; and in the other four cases the last installment of the respective assessments was due on or before September 1, 1935, the bonds were payable in numerical order on or before October 1, 1935, and the suits were filed in August, 1939, September, Í939, October, 1940, and November, 1940, respectively. It is contended that the proceedings were barred under the second subdivision of
The first paving law enacted in Oklahoma appeared as article 6, chapter 12, Wilson’s Revised and Annotated Statutes of Oklahoma 1903, and it cоntained a provision that the assessments should be a charge and lien against the property assessed until fully paid. That act remained in force until the enactment of chapter 10, Laws of Oklahoma 1907-08. Section
5,
article 1 of the later act provided that the special assessments and all interest thereon should constitute a lien against the lots and tracts assessed, co-equal with the lien of other taxes, and should continue until paid in full; and, with an addition which has no bearing here, that provision became section 634, R.L. 1910, and was carried forward as section 4609, C.O.S.1921. See McGrath v. Oklahoma City, 156 Old. 34,
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This is a special statute authorizing assessments] and dealing with the rank and duration of the lien. The lien becomes effective immediately upon the levying of the assessment, and when the assessment ripens into delinquency it may be collected or enforced by sale and resale of the property as in case of other delinquent taxes. Oklahoma City v. Vahlberg, supra; Board of Seminole County Com’rs v. City of Wewoka, Okl.Sup.,
The well-recognized rule obtains in Oklahoma that the law existing at the time of the issuance of bonds and authorizing their issuance enters into and becomes an essential part of the contract in such way that the obligation of the contract cannot be impaired or its fulfillment hampered or obstructed by subsequent change in the law. Perryman v. City Home Builders, supra; Nelson v. Pitts,
But appellants rely on Board of Education v. Johnston,
Our attention is called to sec tion 1, article 6, chapter 33, Laws of Oklahoma 1939, 11 O.S.1941 § 242. It prоvides that from and after the effective date of the act, the right of any holder of street improvement bonds to enforce the assessment lien by foreclosure, mandamus, refunding or otherwise, shall be barred upon the expiration of three years following the maturity of such bonds unless an action of foreclosure shall have been instituted and service of summons had, but that in cases where the period mentiоned had expired or would expire before November 1, 1939, the holder should have until December 1, 1940, within which to pursue his remedy. That statute indicates clearly a then legislative understanding or interpretation that the general three-year statute of limitations previously adverted to did not apply to a special proceeding to foreclose an assessment lien, for if it did the enactment of the iatеr special act fixing the same three-year period was merely a gesture. Of course, that legislative interpretation should be and is strongly persuasive in resolving the doubt, if any existed, whether the general three-year statute applies to a special proceeding of this kind. First Natl. Bank in St. Louis v. Missouri,
In addition to the defenses previously referred to, appellants in one of the cases relied upon res judicata. By answer they pleaded that the then owner of the lots instituted in the state court two actions in mandamus to compel the clerk of the City of Clinton to accept paving bonds in payment of the assessments; that judgments were entered for plaintiff and writs of mandamus issued requiring the clerk to' accept the bonds for that purpose; that no-appeal was taken in either case; and that the bonds were tendеred and accepted and receipts issued, all pursuant to the judgments and writs. It was stipulated in the court below that the only question involved in those two actions was the validity or invalidity of chapter 58, Session Laws of' 1933, 62 O.S.1941 § 341 et seq. That statute provides that the owner of property in a paving district shall have the right to pay the assessment against his property with paving bonds; that the clerk shall accept bonds for thаt purpose; and that payment in that manner shall operate-to discharge the lien. But the act was declared unconstitutional in respect of bonds-issued prior to its enactment as impairing-the obligation of the contract, where the:
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statute authorizing the issuance of such bonds failed to provide for payment in that manner. Davis v. McCasland, supra. And in view of the unconstitutionality of the act, it was recеntly held that a judgment in a mandamus action to compel the clerk to accept bonds in payment of an assessment lien does not constitute res judi-cata in a subsequent special proceeding to enforce the lien. Security State Bank of Wewoka v. City of Wewoka, 189 Old. 699,
Other questions are presented. We fail to find any merit in them.
The judgments are severally affirmed.
Notes
Not released by court at date of publication.