Briley v. Board of Sup'rs of Story County

• Decision Date: 01 August 1939
• Docket Number: 44859.
• Parties: BRILEY v. BOARD OF SUP'RS OF STORY COUNTY et al.
• Court: Iowa Supreme Court

287 N.W. 242

227 Iowa 55

BRILEY v. BOARD OF SUP'RS OF STORY COUNTY et al.

No. 44859.

Supreme Court of Iowa.

August 1, 1939

Appeal from Municipal Court, City of Ames, Story County; J. Y. Luke Judge.

Action in mandamus to compel the board of supervisors to direct the county auditor to issue warrant for monthly salary due the plaintiff as county treasurer of Story County, Iowa. Trial court granted the writ, and the board of supervisors, county auditor and the bond company, surety on plaintiff's bond have appealed.

Reversed.

Frank H. Lounsberry, of Nevada, and Lee & Walsh, of Ames, for defendants and appellants.

Davis McLaughlin & Hise, of Des Moines, for cross-defendant and appellant.

Hirschburg & Reynolds, of Ames, for appellee.

HAMILTON, Justice.

This case comes to us on an appeal from an order sustaining a motion for judgment for plaintiff on the pleadings. While there is no statutory authorization for such a motion, it has been the practice of trial courts in this state to permit the filing of such a motion where the allegations of the answer raise no issue to be tried as, for instance, where the answer admits the amount due as claimed by plaintiff. Viall v. First National Bank, 115 Iowa 11, 87 N.W. 733.In other cases the procedure has been treated as by mutual consent of the parties. Crom v. Henderson, 182 Iowa 89, 165 N.W. 397; State ex rel. Freeman v. Carvey, 175 Iowa 344, 154 N.W. 931; and Hilsinger v. Zimmerman Steel Company, 193 Iowa 708, 187 N.W. 493.In the instant case, the procedure was not in any way questioned or attacked in the court below and the trial court, in sustaining the motion and entering judgment and decree, found that the defendants, by their answers admitted the material allegations of plaintiff's petition and the right to relief demanded and that said answers presented no defense and raised no issue and that the plaintiff was, therefore, on the pleadings, entitled to judgment and decree.

The issue is simple and, as we view it, not difficult of solution. The facts are that plaintiff was duly elected treasurer of Story County, Iowa, for a term of two years beginning January 1, 1937. In August, 1938, by resolution, the board of supervisors directed the county auditor to withhold payment of plaintiff's monthly salary and, in obedience to such order and direction, the auditor has refused to pay plaintiff his salary since said time, and this action was commenced to compel the issuance of a warrant on the part of the county auditor for said salary. By way of answer, as justification for its action, the board and also the county auditor affirmatively alleged that, during his term of office, there came into the plaintiff's hands, as treasurer, more than $6,000 which he has failed to account for and which the plaintiff is owing Story County; that said amount has been demanded from plaintiff and plaintiff has refused to pay the same. They further plead the right to set off and allege that plaintiff has not offered to do equity and is, therefore, not in equity with clean hands; that plaintiff is insolvent and they deny the allegation in the petition that plaintiff is the head of a family.

The question is: Do these allegations raise an issue as to plaintiff's right to equitable relief by way of mandamus compelling the board of supervisors to direct the auditor to issue a warrant for the plaintiff's salary and for an order directing the auditor to issue such warrant?

The trial court adopted the plaintiff's theory that no issue of fact was raised. We are unable to agree with such conclusion.

The gist of plaintiff's contention is that the amount of the monthly salary is fixed by statute; that the board and county auditor have no discretion in the matter; that, as long as the treasurer is in office, there is a mandatory duty to pay his salary; that, notwithstanding the fact that the pleading raises an issue as to whether or not the plaintiff is the head of a family, nevertheless, under the common law and the public policy of this state, plaintiff's salary as a public official is exempt from garnishment execution or payment of his debts; that, although the answer alleges affirmatively that more than $6,000 of money belonging to the county came into the plaintiff's hands and further alleges affirmatively that this amount is owing by the plaintiff to the county, the same cannot be pleaded as an offset; and that the defendants' efforts, in this respect, were futile. We cannot subscribe to this theory. This is not an attempt on the part of a third person to garnish, attach or reach by execution the salary of a public official. In this action, the defendants are public officials representing the county and the public. According to the allegations of the answer, plaintiff has $6,000 of the county's money, that is, this money came into his hands as treasurer of the county; demand has been made upon him for payment; payment has been refused; he is insolvent. He does not come within the provisions of any statutory provision relating to exemptions. He brings a mandamus suit which is triable in equity and we are therefore on the equity side of the docket and we must, in the solution of the problems necessarily apply equitable principles. Plaintiff seeks to avoid this by contending that mandamus is a special proceeding and not an equitable action. Plaintiff's point is not well taken. By special provision of our statute, Sec. 12442, Code of 1935, mandamus actions shall be tried as equitable actions. See, Funck v. Elevator Co., 142 Iowa 621, 632, 121 N.W. 53, 24 L.R.A.N.S., 108. " Mandamus, under the Iowa practice, was originally an action at law, but chapter 168 of the Acts of the 32d General Assembly [Section 4341, Code Supplement, 1913] changed the action to one in equity." Looney v. Consolidated Independent School Dist., 201 Iowa...