5 S.W. 813 (Mo. 1887), Sheridan v. Fleming

• Citation: 5 S.W. 813,93 Mo. 321
• Docket Number: .
• Date: 28 November 1887
• Parties: Sheridan, Appellant, v. Fleming et al
• Court: Missouri Supreme Court

Page 813

5 S.W. 813 (Mo. 1887)

93 Mo. 321

Sheridan, Appellant,

v.

Fleming et al

Supreme Court of Missouri

November 28, 1887

Appeal from Holt Circuit Court, -- Hon. H. S. Kelley, Judge.

Reversed and remanded.

James Limbird for appellant.

The general denial, filed as answer, was no return to alternative writ granted. Demurrer ought to have been sustained, and peremptory writ awarded. R. S., sec. 3254. Until a proper return to alternative writ was made by defendants, and reply by plaintiff, there was and could be no issue for trial. R. S., sec. 3255, 3261; State v. Bollinger County, 48 Mo. 475; State ex rel. v. Lafayette County Court, 41 Mo. 545; Austin v. Court, 35 Mo. 198; State ex rel. v. Everett, 52 Mo. 89; State ex rel. v. Myers, 80 Mo. 601. The evidence fully sustains every allegation in the petition and the trial court erred in refusing the peremptory writ. 2 W. S., secs. 30-40, p. 872; 48 Mo. 475; Cooley on Taxation [2 Ed.] 738; 2 Dillon on Corp., secs. 849, 868; Brownell v. Supervisors, 49 Mich. 414; State v. Tyler, 48 Conn. 145; Decatur County Board v. State, 86 Ind. 8; State v. Com'rs, 18 S.C. 597; People v. Supervisors, 2 Keyes [N. Y.] 288; Nelson v. St. Martin's Parish, 111 U.S. 716. The law directed the county court to pay the warrant that had been issued to him. 2 W. S., secs. 30-40, p. 872. This they refused to do. No appeal could lie to the circuit court, as there was no question at issue and nothing to be tried de novo. In all such cases the writ of mandamus is the appropriate remedy. 1 Desty on Taxation, 521, 523, 530, and cases cited; High's Extraordinary Rem. (2 Ed.) secs. 37, 38, 139, 232, 233, 370. The amount of the demand was fixed, had been adjusted by the Holt county court; was due appellant and unpaid; mandamus lies to compel the court to provide for the payment thereof. 1 Desty on Taxation, 533, 535, and authorities cited. Mandamus is the proper remedy to compel a municipal corporation to pay the claim of a creditor, or to compel a tax levy to pay the debt of a county. Desty on Taxation, 635, 636, and authorities cited.

S. O'Fallon for respondents.

OPINION

[93 Mo. 323] Black, J.

Sheridan applied to the circuit court of Holt county for a writ of mandamus requiring the judges of the county court to levy taxes for the payment of a warrant by him held on the county treasurer. The peremptory writ being denied, he appealed to this court. The facts disclosed are these: In 1874, Sheridan made a contract by which he became bound to dig what is called Tarkio ditch. The contract was made with commissioners, appointed by the county court under the act of March 3, 1869, which provides for the reclamation and improvement of swamp lands. After the contract had been made, the commissioners reported to the county court the estimated cost of the work, which they fixed at $ 6,267; and they estimated the benefits which would accrue to the county...