On Motion for Rehearing. The appellee has moved for rehearing. A large number of attorneys, under leave *Page 474 of the court, have appeared as amici curiae. Among them may be found city attorneys of several municipalities in the state, aligning themselves with appellee, in urging that there is no statute of limitations applicable to paving assessments. A goodly number of attorneys, appearing as amici curiae, have aligned themselves with appellant in support of the conclusions reached in the opinion already handed down. Able arguments have been made both in the briefs and at oral argument granted on the motion for rehearing. Counsel and amici curiae are to be commended for the zeal and industry displayed in presenting to us the questions raised by the motion. The public importance of such questions deserves the attention all counsel have given it.
We have fully considered the briefs and arguments but remain unshaken in the conviction that the disposition made of the appeal in our original opinion is correct. The argument that it has been a studied legislative policy over the years, consistently adhered to, to elevate the security of public improvement assessments, is intriguing. Nevertheless, this consideration fails to overcome the reasons put forward in our former opinion to support the holding that the general statute of limitations is applicable to the foreclosure of the statutory paving lien.
Counsel for appellee remind us of language in sections 4 and 5 of bond ordinances 157 and 166, assertedly adopted as companion enactments to Clayton paving ordinances 156 and 165. Ordinances 157 and 166 were not before the trial court when it decided this case. They came before us by virtue of a stipulation signed by counsel for the respective parties under the certificate of the District Clerk of Union County, for such consideration as this court, in its discretion, feels should be accorded them. Sections 4 and 5 of bond ordinances 157 and 166 read as follows:
"Section 4. That if the owners of any parcel of land assessed for the said improvements shall be delinquent in the payment of any assessment installment, or interest due, it shall be the duty of the Village Treasurer to notify such owner in writing that such delinquency exists, and that, if the amount due is not paid within ten days after the date of said notice, the delinquent property will be sold for the payment due thereon.
"Section 5. If the payment or payments due as specified in the next preceding section is or are not paid within the stated time, it shall be the duty of the Board of Trustees, at its own expense, to cause the delinquent property to be sold at the same time and in the same manner as the sale of property in the municipality for delinquent general taxes, in any manner which is now or which may be provided by law."
Our attention is drawn to the language of an Indiana statute (Sec. 10455, Burns' Ann. 1926), involved in Hennessey v. Breed, Elliott Harrison, 92 Ind. App. 165, 176 N.E. 251, 254, claimed to be similar to the provisions of sections 4 and 5 of the Clayton bond ordinances, the statutory provision reading as *Page 475 follows: "And provided, further, That no suit shall be instituted to collect any unpaid assessment, whether a waiver has been signed or otherwise, until thirty days after default, during which period of grace, such assessment, or the unpaid instalmentthereof, may be paid to the treasurer without further penalty,nor shall any such suit be instituted until fifteen days afterservice of notice upon the delinquent by the owner of such lienor assessment, during which period of grace, such assessment orthe unpaid instalment thereof may be paid to the treasurerwithout further penalty. A notice mailed to the person in whosename said lands are assessed, addressed to such person withinsaid city, shall be deemed a sufficient notice. * * * In no case shall the attorney's fee exceed the amount of the assessment."
It is to be noted that there is a difference between the language of the Clayton bond ordinances quoted above and the statutory provision involved in the Hennessey case last quoted. Whether the language in the ordinances or the language in the statute, if properly before us in this court, would compel a different holding as to the time from which the statute of limitations runs, we decline to intimate. The language of the bond ordinances was not before the district court when it rendered its decision and it is not properly before us. Any expression of views by us at this time on the effect of the same or similar language would be entirely gratuitous.
The motion for rehearing will be denied.
BICKLEY, J., and MOISE and LUJAN, District Judges, concur.