I dissent to paragraph 4 of the syllabus and that part of the opinion holding that the judgment has become dormant and that execution cannot issue until after it has been revived. *Page 109
There am two rules of law that are being confused: (1) The rule that, in prosecuting or defending suits, procedural statutes setting up rules for pleading and practice apply to the state as well as to private litigants unless the statutes provide otherwise (49 Am. Jur. 295-297; 59 C.J. 328-330); and (2) the rule that the public rights, titles, interests or prerogatives of the state will not be lost or limited by reason of the laches of its officers, and that with respect to such rights the state is not to be considered as being within the purview of a statute, however general and comprehensive the language of the statute may be, unless it is expressly named or is included by necessary implication. White v. State,50 Okla. 97, 150 P. 716; Morris v. State, 88 Okla. 189, 212 P. 588; State v. Friar, 165 Okla. 145, 25 P.2d 620; 49 Am. Jur. 235, 236, 297, 299.
The majority takes the view that the first rule is the one that applies here. I think the second is the one that is applicable.
The second rule obtained under the English common law (49 Am. Jur. 235), and is, by 12 Ohio St. 1941 § 2[12-2], put in force in Oklahoma. It is by reason of this rule that the statute of limitations does not ordinarily apply to the state and its municipal subdivisions when public rights are involved. 25 R.C.L. 410; 34 Am. Jur. 300; 37 C.J. 710; State v. Hall,191 Okla. 257, 128 P.2d 838. It was under this rule that it was held in an early English case (Anonymous, 2 Salk 603) that "in the case of the King there need not be any scire facias after the year." The writ of scire facias was used in England to revive a judgment when the time within which execution might have issued had passed. 47 Am. Jur. 466, 471; 56 C.J. 869. Our revivorship statutes serve the same purpose and have rendered that writ largely obsolete. The English rule stated in 2 Salk 603, above, has been followed in several states of the Union. See annotations in 47 L.R.A. (N.S.) 905; 118 A.L.R. 929. As is pointed out in some of the cases discussed in these annotations, the rule has been abrogated in some of the states by statute either expressly or by clear implication.
The courts do not always distinguish between the statute of limitations and the dormancy statute. In fact, they occasionally refer to the dormancy statute as a statute of limitations. See Beadles v. Fry, 15 Okla. 428, 82 P. 1041, 2 L.R.A. (N.S.) 855; Josselyn v. Stone, 28 Miss. 753. The two statutes are analogous. The one is a limitation on actions while the other is a limitation on judgments. The one relates to the commencement of actions, so that if an action is not commenced in time it is barred. The other relates to the life of judgments, so that if execution is not sued out in time it becomes dormant, and it must be timely revived before execution can issue. In common parlance both actions and judgments are said to be "outlawed" after the statutory period has run. Each statute relates to the laches or neglect of the plaintiff or the judgment creditor, as the case may be, to act timely. Both are found in the Code of Civil Procedure. Both are silent on the question of whether they apply to the state. It would seem that if the one does not apply to the state in regard to its sovereign rights, neither should the other.
Thus, in White v. State, above, we held that the statute of limitations does not run against the state for the reason that "the ground on which this doctrine rests is the great principle of public policy that the public interests shall not be prejudiced by the negligence of public officers, to whose care they are consigned." And in Morris v. State, above, we held that the state on relation of the Bank Commissioner was not required to make a replevin bond when suing to recover personal property secured by a mortgage in favor of a failed bank. We said:
"There is nothing in this section of the statute indicating that it was the legislative intent to extend its provisions to the state, and the general rule *Page 110 is that the, state is not bound by the provisions of a general statute, where the effect of such statute would be to restrictthe rights of the state, to affect its interests, or to imposeliabilities upon it, unless it is named expressly or by necessary implication. (Citing cases from 13 states, including Josselyn v. Stone, above.) This rule, which is of ancient origin and based upon the idea that the king is not bound by a statute unless named in it, has been extended so as to apply to our national and state governments. The reason for applying the rule in a representative government is equally cogent as in a kingly government, and stands on the same grounds of expediency and public convenience . . The presumption obtains that it was the legislative intent to exclude the state from the operation of a statute unless the contrary clearly appears, this for the reason that laws are ordinarily made for the government of citizens and not of the state. (Citing cases.)
"No reason is perceived why this rule should not apply to the case at bar." (Emphasis ours.)
I see no reason why, if this rule applies in a suit to recover property claimed by the Bank Commissioner in trust for the depositors, it should not apply to the case before us involving trust funds belonging to the state in its sovereign capacity. Nor do I see any reason why the state should be required to revive the judgment either by a motion to revive or by an independent action, before execution can issue. Theright to have execution issued to collect the judgment was secured when the judgment was rendered. Of course, the steps leading up to the securing of that right were procedural and the state was required to follow the procedure outlined by the statutes. And in issuing the execution and making the levy, sale and return, and in securing confirmation the state must follow the procedure outlined. Those are all procedural steps. But, the right to have the execution issued is no more procedural than is the right to sue.