# Wilson v. City of Hollis > Supreme Court of Oklahoma · October 19, 1943 · 193 Okla. 241 URL: https://www.frixlaw.com/law-library/cases/3814295 ## Case - **Full name:** WILSON Et Al. v. CITY OF HOLLIS Et Al. - **Court:** Supreme Court of Oklahoma - **Decided:** October 19, 1943 - **Citations:** 193 Okla. 241; 142 P.2d 633; 150 A.L.R. 1385; 1943 OK 344; 1943 Okla. LEXIS 374 - **Precedential status:** Published - **Opinion:** Dissent by Hurst - **Judges:** Arnold, Bayless, Corn, Davison, Gibson, Hurst, Osborn, Riley, Welch - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3814295 ## Opinion text HURST, J. (concurring in part and dissenting in part). I concur in the conclusion that a writ of mandamus should not issue to compel the respondent members of the board of education to now make provision -in the estimate of needs of the school district for payment of the 1929 paving installment, (1) because the proceeding is barred by laches for the reasons stated in an opinion filed herein on October 6, 1942 (13 Okla. Bar Journal 1292), and (2) because a municipality is without authority to levy taxes during one fiscal year to pay paving assessments that were due and payable during a prior fiscal year. See my special concurring opinion in Board of Education v. Johnston, 189 Okla. 172 , 115 P. 2d 132 , and authorities there cited. The question as to whether a money judgment may be rendered against a municipality for delinquent paving assessments is not before us. The respondents in this mandamus proceeding are the individual members of the board of education. The school district is not sued in its corporate capacity as required by 70 O. S. 1941 § 183,-and is not a party to this suit. No money judgment is here sought. Such issue was not framed by the pleadings, is not presented by the petition in error, and is not briefed. And since the necessary parties are not-before us and the issue is not presented, two elements of jurisdiction are lacking — jurisdiction of the necessary party and jurisdiction to render the particular judgment. All that *248 is said on the question in the majority opinion is, therefore, dictum. We should withhold our decision on the quéstion until a case involving the issue, and of which we have jurisdiction, is presented, at which time we will have the benefit of briefs and argument by interested parties. Particularly is this true where, as here, two lines of decisions are being overruled. “Matters not presented to the trial court will not be considered (on appeal) for the purpose of advising the trial court of the action it ought to take on their being subsequently presented to it for consideration.” 2 R. C. L. 181. See, also, 3 Am. Jur. 361 ; 4 C. J. 649; 5 C. J. S. 36. The court is on solid ground in denying the writ of mandamus. It is not necessary or proper, in order to justify the decision that a writ of mandamus shall not issue, that the court point out, by way of dictum, that the bondholders have other rights not being asserted. I know of no reason why paving bondholders are such favorites of the law as to justify such action. They should be accorded their legal rights, but should be required to assert their rights and defenses as is required of other litigants. It is a well known fact that the higher numbered paving bonds, issued under the 1923 law, are generally of doubtful value. The contractor, who takes the bonds in payment for the work (11 O. S. 1941 § 130), increases the cost of the paving to make allowance for that fact. And if the bonds are sold by the contractor, the purchaser usually buys them on that assumption, on a speculative market, at a fraction of their par value. Not only should this court refrain from expressing an opinion on the question as to whether a money judgment can be rendered against a municipality for recovery of delinquent paving assessments, but several conclusions reached by the majority are of doubtful soundness. The question as to whether a municipality is liable for no interest or penalty after the due date of each annual installment is at least debatable. And the principle so announced will be violated by permitting a money judgment to be rendered, since such judgment will draw interest at the rate of 6 per cent per annum. 15 O. S. 1941 § 274. The question as to whether a money judgment can be rendered in such a case is also debatable. It could be well argued that the statute contemplates that the sole remedy of the bondholder is to compel the making of the annual levy to pay the maturing installment and to compel the city or town treasurer to issue a warrant for payment of such installment. The fact that the statute (11 O. S. 1941 § 107) specifically creates a cause of action against individual property owners only may indicate that the Legislature intended that no such civil action can be maintained against a municipality. The majority opinion is obscure as to the nature of the judgment directed to be rendered. Is it to deny mandamus or to enter a money judgment? If the former, the result reached is correct. If the latter, it is incorrect because the trial court is without jurisdiction for the reasons above stated. The opinion seems to imply that an action for a money judgment is not barred by any statute of limitations. It neither points out the applicable statute nor states when the cause of action accrued. Such a conclusion is certainly questionable. The school district is not a party to the bonds. Its liability is not contractual, but is imposed by law. Why did not the cause of action for a money judgment accrue as to each installment when the same became delinquent? Here the last installment became delinquent on September 1, 1936, or more than seven years ago. Why is the action not barred by the three-year statute found at 12 O. S. 1941 § 95 (2) ? The school district should be left free to interpose any defense it chooses, including the defense of limitations, if and when a civil action is filed to re *249 cover a money judgment on the delinquent assessments. For the reasons stated, I concur in the conclusion that a writ of mandamus should not issue, but dissent to the reasoning and other conclusions. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3814295. Public record. Not legal advice.