Page:United States Reports, Volume 209.djvu/424

 OCTOBER TERM, 1907. Opinion of the Court. 209 U.S. ls had no property subject to levy upon execution, and that the judgments of the plaintiff could not have been paid, and taxes levied for that purpose, because there had not been sufficient money in the judgment fund of the city of Perry to pay the judgment or any part thereof, That under the agreement of December 3, 1901, payments of judgments a imt the city have been made, but in the order of rendition the fund has been paid upon judgments prior to the plaintiffs. That under the law of the Territory, during the life of the said judgments, at least since the year 1899, it has been the duty of the city of Perry to levy annually a tax not to exceed five mills on the dollar on all the property of the aid 'city,.to create a judgment fund, and that said city has made said levy nnually, and paid judgments down to the early part of 1905, since which time the city treasurer of the city of Perry, under the direction of the mayor and city council, has declined to pay the plaintiff's udgments. or any proportion of the same, and that there has accumulated in the hands of the city trsas- urer $2286.96, the judgment fund of said city. And that at all times down to the benning of the year 1905 the city of Perry has recognized the binding force and validity of said' judgments; that the mayor and council nd treasurer of said city decline and refuse to recognize the validity of the plain- tiff's judgments or pay any part thereof, and deny any lia- bility thereon, solely on the ground that the same have come dormant and barred by the statute of limitations of the Territory of Oklahoma. And other avermerits are made as to the inability of the plaintiff to otherwise collect their money upon the judgments than by payment by a levy at five rnilla on the dollar of the taxable property of the city. And the plaintiff prayed a writ of rnnclmrs S int the mayor, city council and treasurer of said city, comrnnding them to recog- nize the said judgments and to continue to make the five-mill levy allowed by the law for the judgment fund for the pay- ment of said judgments against the city, as provided by law. An alternate writ of mandamns was issued, reciting the al-

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