(84 Okla. 172, 200 Pac. 544.) ply to a limitation fixed in a contract by the parties, and that the suit was not commenced until actual service was had upon the insurance company. If that rule was sustained, the suit was not begun in time under the stipulation provided in the contract for insurance. The court held that the Code of Civil Procedure applied, and that the putting of the summons in the hands of the sheriff commenced the suit and satisfied the provisions in the contract of insurance. The said case, quoting from page 487 of 42 L.R.A. (156 N. Y. 334, 50 N. E. 865), states the following reasons for its holding: "Although it must be admitted that the precise question under consideration did not arise in either of the cases cited, still they involved the principle under discussion, and also plainly show that the opinion of this court was that the general provisions of chapter 4 apply as well to limitations prescribed by the written contract of the parties as to those where a different limitation is specially prescribed by law. The reasoning which shows the necessity for their application in one class of cases is equally applicable to the other, and the same rule should be applied in each. It is obvious that by § 414 the legislature intended to and did recognize the right of parties, by their written contract, to prescribe a shorter limitation for its enforcement than that contained in the general limitations of the Code. It is equally clear that it intended to make the limitations prescribed by special statute, or by the contract of the parties, a part of the general law controlling the limitation of actions, and to make all the rules of limitation recognized by that act subject to the general provisions of chapter 4. Any other rule would result in unsettling the law, and in many cases would work the greatest injustice. If those general provisions are not applicable to such a case, then we have a plain and definite system of law which governs one class of limitations, but no law or procedure whatsoever applicable to be controlled and governed by the derly and uniform enforcement of the law." The defendant in error, in this case, cannot contend that this is a limitation provided by a private contract. As such Insurance -statutory limitation. standard policy it would be void, since in contravention of the laws of this state. See the following Oklahoma cases: Keys v. Williamsburg City Fire Ins. Co. 37 Okla. 482, 132 Pac. 818; Seay v. Commercial Union Assur. Co. 42 Okla. 83, 140 Pac. 1164. To uphold the same, and invoke it in this case, they must sustain it upon the ground that it is a statute of limitations provided by the legislature of this state, and such we hold it to be. In the New York case that we have just cited, they held that, even if the provision was held to be a limitation fixed by contract, the provisions of the Code of Civil Procedure and pertaining to limitations applied to it. But they held, as we hold in this case, that, being provided in a standard policy, fixed by the law of the state, the provisions in the general Code as to limitations applied to it also, and in the sense that it was a statutory limitation. The language of the cited opinion then stated: "Practically, then, the limitation in this case was specially prescribed by law, and hence falls directly within the principle of the decisions of the court in the Hayden and Titus Cases. Therefore the conclusion that § 399 is applicable to and governs this case, and that the summons was served in time and the action properly commenced, should be sustained both upon principle and authority." The New York case then takes up and discusses very fully the case of Wilkinson v. First Nat. Fire Ins. Co. 72 N. Y. 499, 28 Am. Rep. 166, and holds that the ruling in that case does not contravene the ruling in the case we have been discussing. This is important, for the reason that in the case of McElroy v. Continental Ins. Co. 48 Kan. 200, 29 Pac. 478, wherein Simpson, Commissioner, refused to apply the tolling pro vision to an insurance policy containing the twelve months' limitation, he cites and quotes from the Wilkinson Case and seems to make it the main basis of the holding. We are disposed to follow the holding in the New York case rather than the holding in the Kansas case, for the reason that we think it comports more with equity, right, and reason, and we do this notwithstanding the fact that our statutory limitations are adopted almost verbatim from the Kansas Code of Civil Procedure (Gen. Stat. Kan. 1915, §§ 6891-7695). Sanborn, J., refused to apply the tolling provision of the statute in this state in the case of Partee v. St. Louis & S. F. R. Co. 51 L.R.A. (N.S.) 721, 123 C. C. A. 292, 204 Fed. 970. The tolling provision was sought to be applied to a special statutory cause of action which provided that an action must be commenced within two years after the wrongful act or death. The suit in that case was commenced within the two years, but failed but failed otherwise than upon the merits. Another suit was begun after the expiration of the two years from the date of the wrong, and the circuit judge held that the cause of action had expired, and that the limitation provided in the special statutory cause of action inhered in the cause of action, and that the cause expired with the limitation. Martin, Justice, who wrote the New York case that we have been discussing, cited above, differentiates the kind of a case that he was discussing and the kind of a case such as we have in the instant case from the one like the one decided by Sanborn, Cir. J., in the following language: "Nor do we regard the decision in Hill v. Rensselaer County, 119 N. Y. 344, 23 N. E. 921, as adverse to or in conflict with the conclusion we have reached. In that case the right sought to be enforced was a special right for which a special remedy was given and a special limitation provided, and, under the well-set (84 Okla. 172, 200 Pac. 544.) tled principle that where a new right is given or a new power conferred by statute, and the means of executing it are granted, it can be executed in no other way than as provided by the statute, it was held. that the limitation was so incorporated with the remedy as to become a part of it, and constituted a condition precedent to the maintenance of the action. It is doubtless true that where time is the essence of the right created, and a limitation as to the time of its enforcement is a part of the statute under which the right arises, so that there is no right of action independent of the limitation, the limitation extinguishes the right rather than affects the remedy, and such contracts are not subject to the exemptions contained in the Statute of Limitations. It was upon that principle that the Hill Case was decided, and it has no application to the case at bar." We have been unable to discover that this court has ever decided the exact question involved herein, and it seems to be up to this court to set a precedent. There has been no case by this court that we have discovered, or that has been pointed out to us, that lays down a proposition that conflicts with our holding herein. If this court has established a precedent different from the holding made herein, and we knew what it was, we would be inclined to follow it. To repeat, not knowing of such a holding in conflict with our holding herein, our disposition is to follow the holding that appeals strongest to our view of the best reason for the rule. Our holding is that § 4662 applies in the instant case, and that the plaintiffs in error have one year after the reversal of their suit by the Supreme Court, in which to file the second suit. They having done so, the trial court committed error in sustaining the de murrer. This cause is therefore reversed and remanded, with directions to overrule the demurrer and proceed to a trial of the cause. Harrison, Ch. J., Pitchford, Vice Ch. J., and McNeill and Nicholson, JJ., concur. Petition for rehearing denied September 13, 1921. Per Curiam: At the time the foregoing opinion was prepared by the writer, we were unable to find any Oklahoma decisions passing upon the question of tolling limitations to special statutes, and it is stated in the body of the above opinion that we were setting a precedent in this case, but we find, however, that this question has been passed upon by this court in the case of Bean v. Rumrill, Okla., 172 Pac. 452, opinion by Stewart, Commissioner; opinion filed February 5, 1918, and motion. for rehearing overruled April 30, 1918. The following portions of said opinion are given, and set out the portions of the holdings applicable to the propositions involved in the above opinion in case of George v. Connecticut Fire Ins. Co. (No. 9,938): "We next consider the proposition of the defendant that plaintiffs' cause of action is barred by limitation. The original action in this case was begun January 6, 1915. The notes were due May 26, 1912. The judgment was paid by proceeds of sale of the property May 12, 1913. The Constitution, with reference to usury, among oth'In case a er things, provides: greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover from the person, ceiving the same, in an action in firm, or corporation taking or rethe nature of an action of debt, twice the amount of the interest so paid: Provided, such action shall be brought within two years after the maturity of such usurious contract.' Article 14, § 3. "In § 1005, Rev. Laws 1910, will be found the same language, and such is at present both the constitutional and statutory law of this state. Section 4660, Rev. Laws 1910, reads: 'If, when a cause of action accrues against a person, he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while. he is so absconded or concealed; and if he depart from the state, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought." The defendant in the cited case was a nonresident of the state, and was absent from the state at the time the cause of action accrued, and was continually absent since the accrual of the cause of action. We give the further extract with fullness, for the reason that the rule that we have sought to apply in the above opinion is fully discussed and the law applied. We think this is of sufficient importance that this supplement to the opinion should be printed in the reports, and we ask that this supplement be added in the nature of a footnote, or otherwise, to the above opinion: "But it is urged that the cause of action in the present case arose because of a special statute providing a remedy which did not exist at common law, and that, therefore, the limitation is a part of the remedy, and follows it into any forum where action may be lodged. At common law an action of debt could be maintained to recover interest paid in excess of the legal rate. Our enactment merely enlarges the common-law remedy. The nature of the remedy is specifically preserved; it being provided that the remedy is by 'an action in the nature of an action for debt.' The reasonable inference is that it was the intention of the lawmakers that the same rules with reference to tolling the Statute of Limitation should apply as obtains in any other action for debt. In this connection we call attention to § 2948, Rev. Laws 1910, which reads: "The rule of the com mon law, that statutes in derogation thereof are to be strictly construed, has no application to the laws of this state, which are to be liberally construed with a view to effect their objects and to promote justice.' "It is evident that the statute in question is to be construed not strictly, but liberally, with a view to effect its objects and to promote justice. The common law is not such a monarch that the duly accredited representatives of the people must stand in awe of its stern mandates. It deserves respect as the garnered wisdom of the ages, of the ages, but its principles came by gradual development and as a result of progressive departures from existing customs. Must our lawmakers and the courts, with oriental devotion, live only by worship of the ancestral glories of the law? If so, then stagnation follows, and the stream of progress must cease to flow. "It is urged by defendant that the law authorizing the recovery of twice the amount of usurious interest paid is constitutional, and does not contemplate the modifying provisions of § 4660, supra, tolling the limitation in case of absence from the state. The remedy is authorized by the Constitution, and is now both constitutional and statutory; but we have a right to assume that, in naming the time within which the action shall be brought, it was contemplated that such limitation should be modified by the same tolling provision which applied to other causes of action. Added force is given to this suggestion by $ 2 of the schedule to the Constitution, which reads: 'All laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitation or are altered or repealed by law.' "Section 4660, supra, was a part of the law of the territory at the (84 Okla. 172, 200 Pac. 544.) time of adopting the Constitution, and has remained a part of the law of the state since such time and up to the present. It is not repugnant to the Constitution in any respect. The section is general, and by its terms applies to any cause of action, to a statutory as well as a commonlaw action. The limitation provided for actions for the recovery of usurious interest is not dissimilar to, and is in pari materia with, other provisions as to time within which other actions may be brought. The object of the usury law was to promote justice among men and to protect necessitous citizens from the avarice of those who are more fortunate in the possession of moneyfrom nonresidents as well as residents of the state. Would its beneficent objects be served and justice be promoted by giving nonresident lenders of money an advantage over residents engaged in the same business, or by refusing relief to citizens of the state, when the opportunity is presented, against nonresidents on the same terms as against residents? If this court should so hold, it would result that those bent on evading the usury laws would procure so-called nonresident principals in whose names loans would be made, and the objects of the law would be defeated. "Section 5281, Rev. Laws 1910, creates a remedy for wrongful death which did not exist at common law, and provides that 'the action must be brought within two years.' Such section, we believe, has not been construed by this court in relation to the tolling of the time, because of absence from the state within which such action may be brought. This identical question was, however, presented and passed upon by the supreme court of Minnesota in an able opinion by Start, Ch. J., of that court. Casey v. American Bridge Co. 116 Minn. 461, 38 L.R.A. (N.S.) 521, 134 N. W. 111. "The plaintiff in that case brought action against the bridge company on account of death of her husband, alleged to have resulted from the wrongful act of the defendant while constructing a bridge in Oklahoma. More than two years had elapsed since the death, and the defendant, a corporation, nonresident of Oklahoma, set up the limitation in the section as to time within which the action might be brought as a bar. The court construed the section of our statute which creates the remedy, in connection with § 4660, supra, and held that the limitation was modified by the tolling provisions of § 4660, and that the cause of action was not barred. The court said that the two sections were each parts of our Code of Civil Procedure, but the decision, in the main, hinged on other reasoning showing that the respective sections were in pari materia. Sections 4660 and 5281, Rev. Laws 1910, are identical with ¶¶ 21 and 435, respectively, of the Code of 1893. The court, in rendering the opinion, cited the Code of 1893. We quote as follows: 'It is true that, where a right of action is given by statute, which did not exist at common law, and the statute giving the right of action also fixes the time within which it may be enforced, such time limit is a condition or limitation upon the right, which will control, no matter in what form the action is brought. Negaubauer v. Great Northern R. Co. 92 Minn. 184, 104 Am. St. Rep. 674, 99 N. W. 620, 2 Ann. Cas. 150. The conclusion, however, that the condition is not qualified by the provisions of § 21, does not logically or otherwise follow from the premises, for the conclusion assumes the very question to be decided; that is, whether § 21 qualifies the time limit or condition of § 235.' "Continuing, the court further says: "There is, then, nothing in the language of the respective sections indicating any reason why the tolling provision of § 21 should not apply to § 435. Why, then, should an exception be added, by construction, to § 21, so as to exclude from its express provision the cause of action given by § 435? Why should |