Dempsey v. Oswego Tp.

• Decision Date: 30 May 1892
• Citation: 51 F. 97
• Parties: DEMPSEY v. TOWNSHIP OF OSWEGO.
• Court: U.S. Court of Appeals — Eighth Circuit

51 F. 97

DEMPSEY v. TOWNSHIP OF OSWEGO.

United States Court of Appeals, Eighth Circuit.

May 30, 1892

Statement by SANBORN, Circuit Judge:

This was a writ of error to the United States circuit court for the district of Kansas. On the 13th day of November, 1886 plaintiff in error brought an action against the township of Oswego upon two certain judgments against the defendant which had been assigned to him. Defendant admitted the rendition and assignment of the judgments, but pleaded that they were barred by the statute of limitations, and that this question was res adjudicata. Plaintiff replied that mandamus proceedings were commenced shortly after the judgments were rendered, and had been pending ever since, and that the citizens of the town and its officers elect had prevented any of those elected to office from qualifying since the judgments were rendered, and those elected in the year the judgments were rendered ceased to act, and left the state within a year thereafter. A jury trial was had. The jury returned special findings of fact and a general verdict for the defendant. Plaintiff and defendant each moved the court for judgments. The court denied plaintiff's motion, and entered judgment in favor of defendant, to which ruling plaintiff excepted.

The special findings of the jury, so far as they were material were that on November 29, 1876, judgment was rendered in favor of George O. Marcy against the defendant township for $2,600. On April 9, 1878, judgment was rendered in favor of William N. Field for $1,504. The treasurer of the township, who was elected and who qualified in 1877, shortly after moved out of the township, and thereafter resided in the county. In 1880, J. P. Updegraph was elected and qualified as treasurer, but shortly after moved into another township in the same county. On April 10, 1882, the county commissioners of the county of Labette made a finding on petition that there were no officers of said township, and appointed John Judd trustee of the township, who qualified as such, and has ever since lived in the county of Labette, but was living outside of the township in 1884. The officers of the township were a trustee, clerk, and treasurer. The trustee and clerk elected and qualified in 1877 became nonresidents of the state in 1878, and the three officers elected in 1877 ceased to act as such in 1878. No other officers than those above specified qualified from 1978 to 1886, and none were acting as such in the township during those years. Officers were elected each year, and there was an understanding generally known among the citizens of the township that the officers, if elected, would fail to qualify, and that this would defeat the bonds on account of which these judgments were rendered. On June 16, 1877, an alternative writ of mandamus was issued upon the Marcy judgment, which was served July 21, 1877. On December 19, 1877, a peremptory writ was issued. On December 13, 1878, an alias peremptory writ was issued. On June 3, 1878, an alternative writ of mandamus was issued on the Field judgment, which was served on July 17, 1878. On December 15, 1885, the mandamus proceedings on these two judgments were consolidated by order of the court. On December 16, 1885, an information was filed in the consolidated case, and an alternative writ issued in favor of the plaintiff in error here, Edward C. Dempsey. January 14, 1886, the writ was returned served. June 10, 1886, a motion to quash the writ was filed, and the motion was on that day granted, and the writ quashed. Entries of the names of these mandamus cases appear on the books of the clerk of the court, with notations of continuances in nearly if not quite every year from 1877 to 1890. In November, 1886, an order was made granting leave to file an amended information, and in 1889 an order was made extending the time to file a bill of exceptions.

George A. Sanders and William R. Bowers, for plaintiff in error.

Nelson Case and W. B. Glasse, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge.

SANBORN Circuit Judge.

Under the decisions of the supreme court of the state of Kansas construing the statutes of that state on this subject, this action was barred by the statutes of limitation of that state when it was commenced. 2 Gen.St.Kan. §§ 4092, 4095, 4542, 4537, 4522, 4524, 4525, 4530, 4531; Burns v Simpson, 9 Kan. 666, 667; Mawhinney v. Doane, 40 Kan. 675, 678-680, 17 P. 44; Angell v. Martin, 24 Kan. 336; Turner v. Crawford, 14 Kan. 503; Gruble v. Wood, 27 Kan. 536, 537; Angell v. Martin, 24 Kan. 334, 335; Scroggs v. Tutt, 23 Kan. 182, 186; U.S. v. Township of Oswego, 28 F. 55. The statutes of Kansas provide that, if execution shall not be sued out within five years from the date of any judgment of record in that state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, (section 4542;) that such judgment may be revived by order of the court on application and notice within one year after it becomes dormant; and that, if such order is not made within one year from the time it could first have been made, it shall not be made at all unless by the consent of the debtor or his representatives. Sections 4542, 4537, 4522--4530. In the case at bar no execution could issue against the defendant township, but the writ of mandamus to enforce collection of judgments against municipalities performs the office of, and is legally the equivalent of, the writ of execution upon judgments against private individuals, since the legislature has provided that these judgments shall be paid by taxes, and the levy and collection of the taxes may be enforced by mandamus. It follows that under the Kansas statutes a judgment against a municipality will become dormant if the creditor permits a period of more than five years to elapse between the rendition of his judgment and the issuance of two successive writs of mandamus. U.S. v. Township of Oswego, 28 F. 55. Between the 3d day of ...