On Rehearing.
O’NEAL, J.In their petition for rehearing plaintiffs in error, for the first time, contend the trial court erred in rendering judgment for defendant in error for the reason she did not allege and prove that the obligation sued on had been listed for taxation, and taxes paid on same, as required by the Intangible Tax Law, 68 O.S. 1941 §§1501, 1509, and 1515. This contention is without merit. The obligation sued on is a procedural bond. Liability on a procedural bond is contingent, and not .subject to the provisions of the Intangible Tax Law.
In 51 Am. Jur., Taxation, §425,' p. 446, it is stated:
“An unliquidated claim for damages cannot be taxed, for the obvious reason that until the matter has been determined by appropriate tribunal no liability exists; nor is a contingent liability taxable as property. Notes taken by mutual insurance company from its members, which are payable only in case payment is necessary to meet losses, are not taxable.”
See Kentucky & Louisville Mutual Insurance Co. v. Commonwealth of Kentucky, 153 Ky. 824, 156 S. W. 897, 45 L.R.A. (N.S.) 597. In the body of the opinion it is said:
“Thus accident policies, employers’ liability policies, bonds of indemnity required in court proceedings, are all contracts to pay money upon a contingency, but none of them are subject to taxation, because they have no present cash value.”
In Stevenson v. Wescott, 187 Okla. 208, 102 P. 2d 172, it is held:
“A supersedeas bond is a part of the court records and is not subject to the chose in action tax provided in sec. 12363, O. S. 1931, 68 Okla. Stat. Ann. §511, and may be admitted in evidence without regard to sec. 12368, O. S. 1931, 68 Okla. Stat. Ann. §516.”
Section 12363, O. S. 1941 (Repealed S. L. 1939, page 404) while in effect, provided that:
“Any person owning any bond, note of any duration of over eight months or other choses in action evidenced by writing located in the State of Oklahoma, may take same to the office of the county treasurer of the county in which the owner of said bond, note of a duration exceeding eight months, or other choses in action, resides or he may send a description of the same to said county treasurer, and pay to the said county treasurer a tax of two per centum of the face amount thereof for five years, or, at the option of such person, for a greater or less number of years at the same rate . . . .”
Section 12368, O. S. 1931 (repealed S. L. 1939, page 404) provided that no bond, or note of over eight months duration or other choses in action, which has not been registered as provided by section 12363, supra, shall be admitted in evidence in any of the courts of the State of Oklahoma, provided that this act shall not apply to notes se*277cured by real estate mortgages which have been or hereafter may be registered under the provisions of chapter 246, S. L. 1913, as amended by chapter 105, S.L. 1915.
The difference between the effect of failure to list and pay the taxes under section 12363, O.S. 1931, supra, and failure to list for taxation and payment of taxes under the Intangible Tax Law, is that failure to list and pay under section 12363, supra, rendered the bond, note, or other chose in action inadmissible in evidence, while, under the Intangible Tax statute, if plaintiff fails to allege in his petition and prove at the trial that the note, bond, or other chose in action has been listed for taxation and the taxes thereon paid, no judgment may be rendered thereon and the action must be dismissed.
It is obvious that if a supersedeas bond was not subject to the chose in action tax provided for by section 12363, O.S. 1931, then such a bond cannot be subject to the intangible tax.
Rehearing denied.
ARNOLD, C.J., LUTTRELL, V.C.J., and GIBSON, DAVISON, HALLEY, and JOHNSON, JJ., concur. WELCH and CORN, JJ., dissent.