The question is whether there was such an irregularity in obtaining the default judgment under the third subdivision of section 556, O. S. 1931, 12 O.S.A. § 1031, as to authorize the court to set it aside on motion filed at a subsequent term of the court. I think there was not. The term "irregularity in obtaining a judgment or order" as used in said statute is defined as "the failure to observe that particular course of procedure which, conformable with the practice of the court, should have been observed in the case." Hatfield v. Hatfield,59 Okla. 132, 158 P. 942. The bond sued on was the last due in a series of four. It matured July 1, 1933. The record contains a letter from the treasurer, written October 23, 1935, that the district "now has a balance of $468; we have a notation on the ledger to notify you when sufficient funds are collected to pay the next bond." The treasurer testified that sufficient funds did not accumulate in the sinking fund to pay the bond until "after the statute of limitations ran," presumably meaning July 1, 1938, five years after the maturity of the bond. This action was commenced February 1, 1939. The petition *Page 139 contained the allegation that the district repeatedly acknowledged the existence of the debt after the maturity of the bond. The petition stated a cause of action on a legally issued bond of the district sufficient to invoke the jurisdiction of the court and to require the school district to appear and defend. The district was legally served with summons. It made default. It is not contended that plaintiff induced the district to make default, or that there is any collusion or fraud on his part. After answer day had passed, a default judgment in due form was rendered against the district. The judgment became final with the ending of the term, and the court lost control of the judgment except as it might vacate or modify the same on any of the grounds contained in section 556.
It is clear that if the defendant had been an individual or private corporation, it would have no standing in court, as by failure to plead the statute of limitations the defense would have been waived. Venmex Oil Co. v. Thomas, 189 Okla. 407,117 P.2d 540. I think the same rule applies to municipal corporations. School districts are municipal corporations and may sue and be sued. Section 6784, O. S. 1931, 70 O.S.A. § 64; Joint School District v. Dabney, 127 Okla. 234,260 P. 486. Like other municipal corporations, rules of pleading and practice ordinarily obtaining in civil actions apply to them, in the absence of statutes providing otherwise (we have no such statute pertaining to the defense of limitations), and like other litigants, municipal corporations must plead affirmative defenses, such as the statute of limitations, otherwise they will be considered waived. Johnson v. County Commissioners,7 Okla. 686, 56 P. 701; Van Arsdale Osborne v. Olustee School District, 23 Okla. 894, 101 P. 1121; City of Sulphur v. State,62 Okla. 312, 162 P. 744; 44 C. J. 1478; 56 C. J. 796; McQuillin, Municipal Corps. (2d Ed.) § 2508; Board of County Commissioners v. Board of Finance of Methodist Episcopal Church South (C.C.A. 10th Cir.) 100 F.2d 766; Brown v. Town of Pleasant Point, 36 W. Va. 290, 15 S.E. 209; Leary v. City of Watervliet, 160 N.Y.S. 1042; Carlson v. City of Marshalltown,212 Iowa 373, 236 N.W. 421; Skinner Kennedy Stationery Co. v. Board of Education, 182 Mo. App. 541, 165 S.W. 835; Hewel v. Hogin, 3 Cal.App. 248, 84 P. 1002; Town Council v. Ladd,37 Wyo. 419, 263 P. 703.
The majority opinion cites no case which supports the conclusion that there was "irregularity in obtaining" the judgment, and I have found none. The authorities seem to be to the contrary. 34 C. J. 274, § 495. A defendant cannot set up his own neglect to plead a defense, his own default, as an "irregularity in obtaining a judgment." See Bank of Commerce v. Williams, 52 Wyo. 1, 69 P.2d 525, 110 A. L. R. 1463, and Ealy v. McGahen, 37 N.M. 246, 21 P.2d 84, construing statutes identical with ours. It was not the duty of the plaintiff to insist that the school district contest the case or to notify it that the default judgment was about to be taken.
The two cases relied on in the majority opinion are not in point, (1) because they involved the United States and the State of Utah, respectively, and not municipal corporations, and (2) because they were direct appeals, and were not prosecuted under a statute authorizing the vacation of judgments after term. The United States Supreme Court decision (Finn v. United States, 123 U.S. 227, 31 L.Ed. 128) recognized the general rule that the statute of limitations is waived by failure to plead it, but held that the rule did not apply to suits against the United States in the Court of Claims, since the government had not given its consent to be sued after the statute had run. The rule adhered to by the United States Supreme Court as to ordinary actions is that the statute of limitations is waived unless pleaded, and this is so even where the statute bars not only the remedy but the right. See Burnet v. Alvarez, 226 U.S. 145. In a subsequent decision the Utah court refused to extend the rule in the cited case (Spring Canyon Coal Co. v. Industrial *Page 140 Commission of Utah, 58 Utah, 608, 201 P. 173) to a municipal corporation. See Ogden City Corporation v. Industrial Commission, 92 Utah, 423, 69 P.2d 261.
Under the majority opinion, no default judgment against a school district can be obtained that will not be subject to vacation within three years because the district made default or did not plead all its defenses. And if this rule is to apply to school districts, I see no reason why it will not apply to other municipal corporations. The majority opinion in effect reads into the Code of Civil Procedure provisions not found in the statute and relieves municipal corporations of the duty to defend themselves against suits. If carried to its logical conclusion, the result will be, for instance, that cities and towns, when sued for negligence, can make default or can hold back their affirmative defenses, such as contributory negligence, assumption of risk, or the statute of limitations, and when they lose the first round, they can move to vacate within three years on the ground that they made default or failed to interpose such defenses and get another trial.
I am of the opinion that there was no irregularity in obtaining the judgment, as that term is used in section 556, as defined in Hatfield v. Hatfield, above, and I therefore dissent.