*1 attorney’s fix itself this court should not therefor, judgment nor and render fee for the costs. respondent, We therefore conclude Keen, W. P. should Johnson, Chandler, plain- W. L. for rend- mandamus vacate the tiff in error. January 18, ered him in his court styled Hill, County in cause No. Atty., Walter F. and Clinton, Municipal Corporation, Embry Cox, & Sutton and M. A. all of Williams, E. rel. I. G. C. Chandler, Richardson for defendants error. that he enter therein lieu thereof CORN, brought J.C. This action was vacating order the former the informer recover assigned alleged misappropriated funds, directing for that said cause stand county board if or for trial as no further county treasurer, Eva E. or held or trial had been commenced publishers owners and therein; and it is so had Publicist, being of the Chandler News CORN, J., GIBSON, V. C. parties defendant. OSBORN, concur. RILEY plaintiff’s petition It is
HURST, JJ., county that excise board said county provided appropria- made and printing publishing tion for delinquent November, tax for list $1,500; tax sale in the sum of that the said and the OF WATSON v. BOARD STATE ex rel. said treasurer had full knowl- OF LINCOLN COUNTY COM’RS edge delinquent that said tax list could et al. printed published in a suitable No. 30835. March proper newspaper in said $1,500, for urer, but that said treas- Supplemental Opinion May 11, 1943. knowledge fact, with full of said designated the Chandler News Pub- paper licist as the official in which said delinquent printed tax list should be published; that price informed as to the contract agreed upon, that said presented and filed in the office coun- ty clerk of said their claim for publishing delinquent of said tax $2,462.05; list the sum of claim was allowed said board of the sum of $1,500, remaining portion rejected the total sum of disallowed, and a warrant No. 1093 in $1,500 the sum issued, signed, and sealed and delivered to said claimants, and that the same showed upon its face that there were no unin- remaining cumbered funds in the ac- count. That said with full
knowledge in full settlement and satisfac- claim; allege taxpayers’ de- tion of that notwithstand- and also their *2 paid receipted ing in as said claim mand was not and served subsequently pre- required by full, said law. rejected portion claim for sented a the by question presented the The sole $962.05, and of said claim in the sum of appeal the trial court whether or not of that said board commissioners upon dismissing erred in the case claim allowed said and caused motion. 3591 in said sum to issued there- No. subsequent- for, and same the was objection juris- grounds ly together paid, 5% there- with interest plead- aptly diction of are not the court by on, the treasurer. appears ed. the record that the from jurisdiction' of both court would have taxpayers’ Thereafter demand a sub- subject parties the matter and of the by quali- scribed a number sufficient precedent for a to main- condition taxpayers upon fied was served the by plaintiff. tenance of the action demanding they taxpayer prosecute right in That a has no to recovery steps required an action for stitute an action until the the the funds by the warrant sum the been taken is well on statute have by interest, together the established the decisions with penalty provided by court, in like amount court. This tory in the case of Terri Woolsey the statute. ex rel. et al. v. Johnston al., 934, et 35 Okla. 130 P. said: The board of voluntarily the notice and filed by “An action cannot a be instituted against the action taxpayer taxpayers things or two county, occurred, district court of said have un- in addition to the First, lawful act the of the officers: court, upon cause was tried to the duty officer whose action for thereof, consideration was money defendants, favor of the misappropriated wrong- property publishers, against plaintiff. Ex- fully penalty transferred and for ceptions were reserved and notice of must have failed to ac- such appeal given by plaintiff, was tion; and, second, such re- failure and perfect appeal by time which to fusal must have occurred after demand the court allowed. by taxpayers therefor the ten resident city.” But before the time allowed for again case, discussing And the same fecting appeal the' from proposition, the court said: expired in the former case had this ac- against tion was filed the relator procedure prescribed, “Under the not defendants, these the board of right a of action to does treasurer, city accrue, unless the officers of the and Eva E. duty whose it is to the action publishers, city to recover sum for the refuse to do so after demand sought made ten to be resident recovered in the former city.” question The same was considered “special ap- These defendants al., McGuire v. Skelton et pearance plea jurisdiction.” This where it was said: pleading challenges jurisdiction to hear and determine action, upon failure, “The case and moves the dismissal thereof neglect refusal or of the any officers ground on the “that the court does not township given act, jurisdiction parties or of taxpayer upon compliance resident subject matter,” support and in provisions statute, with the up the motion the defendants set brought by suit him the name of facts as to the former state.” JJ., HURST, concur. Schilling Ok- rel. And in State JJ., concur 168 P. WELCH al., Okla. lahoma result. OSBORN involving of limitations in a suit paragraph court, statute, former syllabus, said: 2 of the Supplemental Opinion. action such “The taxpayers until to such not accrue does CURIAM. cause was sub- PER This pre- conditions performance 1, 1943, and thereafter mitted prescribed section cedent prepared under date against limitations the statute of *3 begin April 20, plaintiff run until The 1943. death does not action accrual thereof.” suggested has been to this court for the first time and shown to occurred petition that his stated in The day March, on or about the 13th not- the board and after the submission of the cause demand, not withstanding did approval opinion of the before diligently prosecute and did stitute court. While fact said death proper between the submission and decision money alleged to have been impair validity judg- does not unlawful, unau- them under preserve rights ment, in order all thorized, contract. and fraudulent opinion thereunder said decision day April, motion dismiss The defendants’ herein on the 20th way styled, hereby regardless is action, is recalled set aside brings attention of Clerk Court directed judg- de- of a denial of said fact that instead refile and enter the county commis- mand the board ment of court in said cause nunc pro the demand and filed sioners as of date tunc Spencer demanded the suit cause was submitted. prosecuting diligently same. Hamilton, 2d 81. tried action was before The It sois said motion who heard were within his of the case facts knowledge. no evi- It sonal allega- disprove plaintiff’s dence to commis- tion that the board BENDELARI, Agt., diligently al. v. did not institute sioners al. KINSLOW et April 13, No. 30611. 1943. beyond question that main- Rehearing May Denied tain such an action never accrues proper to in- officers fail refuse same, stitute officers do institute where prosecute the action never accrues. may judicial trial court take judgments. own Under notice his record, he properly the case. dismissed
Judgment affirmed.
GIBSON, RILEY, V.