
    COLVIN et al. v. CITY OF TULSA et al.
    No. 13726
    Opinion Filed May 25, 1926.
    Withdrawn, Corrected, and Refiled and Rehearing Denied July 13, 1926.
    Appeal'and Error — Failure to Appeal in Statutory Time — Dismissal.
    Where a statute provides that an appeal shall be taken within a given time, and the party attempting the appeal permits that time to ®o by before appealing his case, the court will sustain a motion to dismiss on •the grttund that the cause of action is barred by the statute of limitation.
    
      2. Municipal Corporations — Validity of Charter Provision Prescribing Time Limitation for Appeals from Decisions— Pavemfent Projects.
    The statute of ten day limitation, prevision of the charter of the cir.y of Tulsa, contained 'in sec. 14, art.. 9 of the said charter, providing that a party desiring to appeal from the decision of the city commissioners on a protest against pavement must do so within ten days, is a part of the regulations of matters wholly within said city, as to local improvements and assessments agains'' property for paving of same, is constitutional ami valid.
    (Syllabus by Maxey, C.)
    Commissioners’ Opinion, Division No. 1.
    Error from District Court, Tifida County; Redmond S. Cole, Judge.
    Action by Frank Colvin and 28 cithers to enjoin the City of Tulsa from .carrying out a certain paving contract of improvement district No. 296, and asking that the proceedings be vacated, disallowed, and sec aside for certain reasons. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Louis W. Pratt, J. M. Springer, F. V. Westhafer, and Blake & Fleming, fofr plaintiffs in error.
    
      H. O. Bland, City Atttorney, Harry L. S. Halley, and, Allen & Underwood, for de.end-amts in error.
   Opinion by

MAXEY, C.

The petition in this case is quite lengthy, and sets out various and sundry alleged irregularities, and defendants separately demurred to the petition on the grolund that it did not state facts sufficient to constitute a cause of action in faivor of plaintiffs, and against defendants.

These demurrers came on for hearing on the 18th day of March, 1922, when the demurrers were sustained, upon the 'ground that 'it appears ctn the lace of the petition that the original petition in the case was filed on the 15th day of February, 1922, more than ten days after the action of the ciry commission in denying the protests of the plaintiffs on the 24th day of January, 1922, and on said account the plaintiffs were barred from maintaining any suit under the ten day statute of limitation, contained in section 14, art. 9 of the charier of the city of Tulsa. Upon the hearing of th demurrers, the plaintiffs were allowed to amend the petition in certain particulars, which are set fcfrtli in the journal, and judgment was entered on said amended petition on the 18 h day of March, 1922. The section of the charter of the city of TuiLsa is what might be termed the statute of limi ration in proceedings effl this kind, and reads as follows:

“At any time within ten days, after hearing in section 7 of this article provided for has been concluded, any person or persons, corporation or corporations, having an interest in any real estate which may be subject to assessment under this charter, or otherwise having any financial interest in such improvement or improvements, or in the manner in which the cost thereof is to he paid, who may desire to contest on any ground the validity of any proceeding that may have been had with reference to .the making of such improvements, or the validity. in. whole or1 in part, off any assessment lien fixed by said proceeding's, may institute suit for that purpose in any court of competent jurisdiction. Any person or persons, corporation or corporations, who shall fail to institute such suit within ¡a- period of ten days, or who shall fail to diligently prosecu'e such suit in good faith to final judgment, shall be forever barred from making any such cctatest or contests, and this estoppel shall bind their heirs, successors, 'administrators and assigns. The city of Tulsa*, or the person or persons to whom, the contract has been awarded, shall be made defendants in such suit, and any other proper parties may be j'-im-rt therein. There shall be attached to plaintiff’s petition an .affidavit of the truth of the matter therein alleged, except such matters as are alleged on information and belief, and that such suit is brought in good ¿aith, and not to injure or delay the city or contractor, or any owner of real estate abutting on ¡.he improvement. Unless the prclvisions of this section are complied with by plaintiff or plaintiffs, such suit shall be dismissed on motion of any defendant, and in that event plaintiff or plaintiffs shall be barred and estopped to the same extent’ as if suit had not been broug|ht. * * * Provided, that any apiieal or writ of error shall he perfected within 30 days from the adjournment of the term of .court of original jurisdiction at which final judgment was rendered in such suit. * * *”

The record shows that on the 1st day of April, 1921, the board of commissioners of the city of Tulsa passed a resolution declaring it (o he necessary to improve said districts, describing them; that on the 5th day of April, 1921, the commissioners caused certain advertisements for bids(/to be published; and on the 22nd day of April, 1921, the commissioners awarded a contract for the improvement of certain districts; that on the- 3rd day of January; 1922, the board of commissioners adopted a resolution, -wherein it is stated that they had examined the estimate and statement of the engineer as to the coot of (he. pavement, which should be assessed ¡¡'gainst the abutting owners benefited, and otherwise liable to assessment as the owners Ulereo:' in street improvement dis-.irirt No. 296. This no'-ioe \y.as published 'in tli. i Tulsa Daily World <tf the issues of January 9. 10. 11. 12 and 13, .and contained the narn.es of the I>la:ntiffs herein, and a description of the property owned by each of them and the amount to bo assessed against their property, and that ail matters affecting such improvement or benefits, .and that any claim or objection to the assessment set forth in sa'd notice, should be filed in the office of the city auditor on or before January 22, 1922, and that if no notice or objection was received by the board of commissioners on or .before said date, the some should be waived. A number of protests were filed by the persons named herein as plaintiffs, and the 24th day o.' January, 1922, fixed as the time fdr hearing of siiid protests; that on the 27th day of January, 1922, the board of commissioners denied the .protests filed by the above-named plaintiffs, and ordered tlieit said hearing be closed, and afterwards passed the necesaanw ordinance and proceeded with the work of improving said district; and on th.o 18th day of March, after plaintiffs had filed, their amended petition, the court, upon further hearing, sustained the demurrers of The-several defendants, on the ground that the-case was barred by the statute of limitations, and more than fen days had expired betweer the 24th day of January, 1922, denying tlm protests of plaintiffs on the ground that tin* same was barred by the statute of limits tion, as contained in section 14, article 9 of thel charter of the city of Tulsa.

Note See !_l CO ¡-1 ^ Po !o Q tí co .- $§CO Q, <D M 4J CO • O CO Pi £ w p, . & ■ Ckzn

It will be noticed that the commissioners denied the protest of the plaintiffs on the 24th day of January, 1922, 'and the petiticfn in this ease was not filed until February 15, 1922, when the charter provided that it should be filed within ten days, or was barred under the section of the charter quoted.

The sole question to be decided on the record in this case, is whether ttoa trial court colmmitted error in sustaining the demurrers of the sever'al defendants to the petition, on the 'ground that the same were barred by the statute of limitation above set out.

The plaintiffs in error invoke the rule that all matters well pleaded in a petition should be taken as true, and cite some 'authorities' to sustain that proposition. This is the correct rule in this state, but we do not think it has atny application to a case where the petition shows on its facei that the matters sec up in the petition 'are -barred by the stature of limitation. Where it appears to the court that an action is barred by the statute of limitation, the court will stop right there and proceed no further, because it is without juridiction to determine the matters.

The plaintiff in error has, however, raised the question that the statute of limitation Contained in the city charter of Tulsa is unconstitutional, and chat the general statute of 60 days in cases of this kind governs. We cannot agree with this contention. This very question has been before this court in a number of cases : Partee v. Cleveland-Trinidad Paving Co., 70 Okla. 31, 172 Pac. 945; Berry v. McCormick, 91 Okla. 211, 217 Pac. 392; Grier v. McCormick, 100 Okla. 36, 227 Pac. 400. The case of Partee v. Cleveland-Trinidad Paving Co., won an appeal from the district court of Tulsa county and involved the eicy charter of said city, and is very much like the ease at bar, and this court decided it adversely to plaintiff in error’s contention. The case of Berry v. McCormick, supra, is a ease involving the assessment and collection and costs for street paving, and the court held that the city charter of the city of Tulsa regulating- such matters was supreme, and had to be complied with in every particular. The case of Grier v. McCormick was another Tulsa case, and the court had this same question before it, and in the first syllabus they laid down the following rule :

“The question of jurisdiction of the trial court 'in this action and the powers of a city, organized and existing under a freeholder’s charter, to regulate matters wholly within said city as to lo'cal improvements and assessments againsB' property for payment of same, have been settled by decisions of this court in the following cases, which are hereby adopted: Berry v. McCormick, 91 Okla. 211, 217 Pac. 392; Kreager et al. v. McCormick, 74 Okla. 302, 182 Pac. 78; Partee v. Trinidad Paving Co., 70 Okla. 31, 172 Pac. 945; Nitshe v. State Security Bank of Zanesville, Ohio, etal., 69 Okla. 37, 170 Pac. 234; Berry v. Eureka Construction Co., 76 Okla. 146, 183 Pac., 517; Sapulpa v. Land, 101 Okla. 22, 223 Pac. 640. ”

We think that the 10-day limitation provision of the charter of the city of Tulsa contained in sec. 14, art. 9, of Tulsa ciry charter is not unconstitutional. Having hold that the 10-day statute of limitation contained in the 'city charter is constitutional, and in view of what we have said on the other question in the case, we are of the opinion that the cause of action set up in plaintiff’s petition is barred by the statute of limitation, and that the court was right in sustaining the demurrer. In the City of Topeka et al. v. Cage et al., 44 Kan. 87, 24 Pac. 82, the coui’t held that the action was barred by the statute of limitation, and the facts in that case are identical with the case at bar. See, also, Grier v. Kramer et al., 62 Okla. 151, 162 Pac. 190; Warner-Quinlan Asphalt Co. v. Smith, 68 Okla. 263. 173 Pac. 516. There are numerous other eases from this court which support the position taken by the trial court. The judgment of the trial court is affirmed.

By the GWurt: It is so ordered.  