State ex rel. Hambleton v. Bolche

• Decision Date: 07 June 1886
• Citation: 1 S.W. 234,89 Mo. 188
• Parties: STATE ex rel. HAMBLETON v. BOLCHE and others.
• Court: Missouri Supreme Court

1 S.W. 234

89 Mo. 188

STATE ex rel. HAMBLETON v. BOLCHE and others.

Supreme Court of Missouri.

June 7, 1886.

1. MANDAMUS — ALTERNATIVE WRIT — WHAT MUST BE ALLEGED.

An alternative mandamus is in the nature of a declaration, and must allege, in issuable form, all facts necessary to show the relator entitled to the specific relief he seeks, against the identical persons from whom relief is sought.

2. MUNICIPAL CORPORATIONS — MANDAMUS TO COMPEL PAYMENT OF JUDGMENT.

Under the laws of Missouri (Revision 1879, § 2415) the alternative mandamus when issued to enforce judgment against a municipality, must show upon its face that such municipality has no money in its treasury, and no property liable to execution, and also that such municipality was duly incorporated, and that the defendants named in the writ have lawful authority to levy and collect taxes.

Appeal from Scott county circuit court.

W. H. Bedford, for the State. G. H. Boughton, for appellants, Henry Bolche and others.

BLACK, J.

This is an appeal from the judgment of the circuit court awarding a peremptory writ of mandamus, directing the respondents below, as trustees of the town of Dexter, to levy and collect a tax to pay a judgment. The relator, Hambleton, is the administrator of the estate of Benjamin R. Temples. Temples, on the thirteenth March, 1876, recovered a judgment against the town of Dexter. The judgment remains wholly unpaid. By section 2415, Rev. St., the relator could have sued out an execution, and, when returned unsatisfied, applied for and had a writ of mandamus, directing the proper officers of the town, if incorporated, to assess and collect a special tax to pay the execution. This section we have held affords a summary remedy in such cases. State v. Slavens, 75 Mo. 508. Instead of pursuing this course, the relator presented a formal petition for writs of mandamus. The respondents moved to quash the alternative writ, on the ground that it did not show that an execution had been issued upon the judgment, and for the further reason that the writ did not show that the defendants had any authority to provide for the payment of the judgment by taxation. Error is assigned to the action of the court in overruling this motion.

The alternative writ is the first pleading, and stands as the declaration in a common-law action. To this writ, and not the petition for the writ, the respondents are called upon to plead. While it should appear that the relator has no other adequate remedy, it is not necessary to allege that an execution has been issued, and proved unavailing. It is enough to state that the town has no property whereon to levy an execution, and has no money in its treasury subject to the payment of the judgment. High, Extr. Leg. Rem. § 377. The petition for the writ contains, in substance, these allegations; but for some reason they are omitted in the...