Page:United States Reports, Volume 209.djvu/427

 209 U.S. Opinion of the Court. &c. v. Turner and others, 204 U.S. a23. We are of opinion that the question here involved wa not determined in that case. There was no question of a judgment becoming dor- mant under the statue of limitations for want of execution within five years. The point decided in that case was that the petition for mandamus was not a civil action within the meaning of the Oklahoma Code, barred by the three-year statute of limitations, and the question was whether the re- lator had slept upon his rights for such an unreasonable time as to prejudice the rights of the defendant and preclude re- lief by mandamus. In this case the underlying question is not as to whether a writ of mandamus is the proper remedy, but is, whether the judgment is dormant by rcason of the stat- ute of limitations and incapable of being enforced against the �municipality. The Supreme Court of Oklahoma held that the statute made no exception, and that notwithstanding the avermerit of the petition that the city of Perry had no property liable to be reached on execution, that unless cxccution were issued within the five years, or the judgment revived within one year, it had bec6me dormant for failure to comply with the law. There is some difference of view in the opinion of the courts upon the subject of executions against municipalities, and in some of them it is held that property of a municipality may be reached on execution which is held for profit and not charged with any public trust or use. It was held in this court that the public property of a municipal corporation cannot be seized upon execution. Klein v. New Orleans, 99 U.S. 149. Judge Dillon, in his work on Municipal Corporations (4th ed.) notices the ditterences of ruling on the subject, and states as his own conclusion �6: "On princlple, in the absence of statutable provision, or legislative policy in the particular State, it would seem to be a sound view to hold that the right to contract and the power to be sued give to the creditor a right to recover judgment; that judgment .should be enforceable by execution against the

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