Dist. Twp. of Coon v. Bd. of Dirs. of the Dist. Twp. of Providence

• Decision Date: 28 October 1879
• Parties: THE DISTRICT TOWNSHIP OF COON, APPELLANT, v. THE BOARD OF DIRECTORS OF THE DISTRICT TOWNSHIP OF PROVIDENCE AND OTHERS, APPELLEES.
• Court: Iowa Supreme Court

52 Iowa 287

3 N.W. 109

THE DISTRICT TOWNSHIP OF COON, APPELLANT,

v.THE BOARD OF DIRECTORS OF THE DISTRICT TOWNSHIP OF PROVIDENCE AND OTHERS, APPELLEES.

Supreme Court of Iowa.

Filed October 28, 1879.

Appeal from Buena Vista circuit court.

It is stated in the petition that the plaintiff obtained a judgment in the district court of said county for $4,578.86 damages, and $377.70 costs; that, of said judgment, about $2,003.30 thereof was rendered on account of orders issued on the school-house fund, about $840.92 on account of orders on the teachers' fund, and about $1,734.64 thereof on account of orders issued on the contingent fund; that said judgment is wholly unpaid, and, at a time when defendants' board of directors were legally assembled, the plaintiff demanded of said board the payment of said judgment by orders on the proper funds, drawn on the treasurer of said district township; that it is the duty of the defendants to issue said orders, but that they refused to do so. A writ of mandamus is asked to compel the performance of such duty. The answer, as it stood at the trial, denied the alleged demand only. There was a trial by jury, and a finding the demand had been made. The defendants filed a motion in arrest of judgment and for a new trial, which was sustained, and the plaintiff appeals.G. S. Robinson, for appellant.

O'Connel & Springer, for appellee.

SEEVERS, J.

1. That mandamus should not issue when it will prove unavailing; that the party asking for it must show a clear right thereto, and that it must appear it is in the power and is the duty of the defendant to perform the act sought, is believed to be true. The appellees insist the petition is defective in substance, and the motion in arrest properly sustained, because-- First, “no sufficient demand is alleged in that it did not specify the amount of the orders desired against such fund;” second, “it is not alleged that the amount of the debt against such fund was determined by the judgment in question;” and, third, “it is not shown affirmatively by the petition that the board could have ascertained the amount of the debt against such fund.”

It is insisted by counsel for the appellees that the law is that the matters indicated in the foregoing propositions must be made to appear before the plaintiff is entitled to the relief demanded. If this be conceded to be true, the question then is whether the petition is sufficient in these several respects. It states in substance the amount or proportion of the judgment which is payable from the three funds recognized by the statute. The allegation, in this respect, is not as definite and certain as it should be if it was material to be stated at all; but it is, without doubt, sufficient, in the absence of any attempt of the defendant to have it made more specific. Clearly they could waive a more specific statement if they saw proper. If issue had been joined in this respect, the plaintiff might have been able to have established to the entire satisfaction of the jury the exact sum or proportion of the judgment payable out of each fund. Conceding, therefore, such an allegation to have been material, the allegations of the petition relating thereto are deemed admitted. Code, § 2712. This is not a case where the statement of facts in the petition are insufficient to entitle the plaintiff to any relief whatever, and therefore it is not governed by Code, § 2650. As the allegations of the petition as to the proportion due from each fund was not controverted, and is deemed to be true, no evidence was required on the part of the plaintiff. The conclusive presumption must be indulged that the several amounts are correctly stated in the petition. The allegations thereof become definite and certain by the failure to controvert them, and the failure to ask they be made mo e specific. There is a demand averred; it may not be sufficiently stated, but it is clear from the petition a demand was made. If the petition, in this respect, was not as full as defendants believed it should be, they should have moved for a more specific statement in this respect. This might possibly be...