O'Donnell v. School D. of Cass Tp

• Decision Date: 10 March 1890
• Docket Number: 385
• Citation: 19 A. 358,133 Pa. 162
• Parties: J. P. O'DONNELL v. SCHOOL D. OF CASS TP
• Court: Pennsylvania Supreme Court

19 A. 358

133 Pa. 162

J. P. O'DONNELL v. SCHOOL D. OF CASS TP

No. 385

Supreme Court of Pennsylvania

March 10, 1890

Argued February 17, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY.

No. 385 July Term 1889, Sup. Ct.; court below, No. 367 May Term 1883 C.P.

On April 23, 1883, J. P. O'Donnell filed in the court below a transcript of a judgment for $275, recovered by him before a justice of the peace against the School District of Cass township. On May 21, 1888, without any revival of this judgment having taken place, and without the issue of any writ of scire facias thereon, the court, on motion of the plaintiff's attorney, unaccompanied by any petition or affidavit, made an order awarding "a mandate for payment of debt, interest and costs."

Thereupon a writ reciting the judgment and commanding the treasurer and officers of said school district to cause the debt, interest and costs to be paid to the plaintiff out of any unappropriated money of the school district, and if there were none such, then out of the first moneys to be received for its use, or show cause why they could not do so and why an attachment should not issue against them, was issued and served upon the treasurer and school directors.

To this writ Thomas J. O'Boyle, treasurer of the school district made answer that at the time of its service he had no school funds in his hands; that since said service he had received from the county treasurer, from unseated lands, the sum of $216.47, for school purposes, and for building purposes the sum of $85.65, but the school board had instructed the respondent to retain these moneys to meet the expense of cleaning, repairing and making ready the schoolhouses of the district for the ensuing school term commencing in September some two months subsequent to the date of the answer, and that school taxes for the current year would not be collectible until some time in October. The answer showed also, that two other like writs, upon judgments aggregating $2,409.35, were served upon the same day with the writ in favor of O'Donnell, although issued later.

The plaintiff demurred to the answer made by the school treasurer, and the defendant filed a joinder in demurrer. After argument the court, PERSHING, P.J., without opinion filed, made an order by which the answer of the treasurer was adjudged to be insufficient, and, "the board of directors having failed to make answer," a peremptory writ of mandamus was directed to be issued against the school district.

Accordingly a writ peremptorily commanding its treasurer, directors and officers to pay the plaintiff's judgment without delay, was issued. Thereupon the school district, defendant, took this appeal, specifying that the court erred:

1. In issuing a mandate execution upon a judgment not revived within five years from its date.

2. In issuing such execution without a petition and sworn statement of facts on which to ground it.

3. In entering judgment for the plaintiff upon the demurrer.

4. In awarding the peremptory mandamus.

All the proceedings in this case looking to the collection of this judgment are, for the reasons now given, irregular, and are set aside, at the costs of the plaintiff.

Mr. P. M. Dunn, for the appellant:

1. When the plaintiff in a judgment has taken no action for five years, he shall be put to his writ of scire facias before he can have execution: Conyngham Tp. v. Walter, 95 Pa. 85. It was therefore error to award the first writ of execution. Nor should the court have issued the writ without an affidavit of the facts upon which it was to be grounded. School officers and directors change almost every year, and for the information of new officers and the better protection of the district, some statement of facts showing that the judgment remains unpaid and is still owned by the plaintiff, should be put on record.

2. Judgment on the demurrer should not have been given for the plaintiff. In the first place, the court should have considered the entire record: Murphy v. Richards, 5 W. & S. 279; and had this been done, the fatal error of awarding an execution upon a judgment more than five years old, would have appeared. It is proper to say that this was not called to the court's attention upon the argument. But the treasurer's answer was sufficient. It was made on behalf of the school directors, as well as himself, and it showed that the money in his hands was necessary to prepare for opening the schools in September. The directors were bound so to open them, and the necessary expenses were the first charge upon the treasury.

3. Under § 21, act of May 8, 1854, P.L. 621, which regulates executions against school districts, there can be no such writ as a peremptory mandamus for the payment of a judgment. The directions of the act are clear and explicit. The proper practice under it is that pursued in German Tp. Sch. Dist. v. Sangston, 74 Pa. 454. If the plaintiff claimed that there was unappropriated money in the treasury, he should have denied the return and applied for an attachment. This kind of execution depends wholly upon the statute for its validity. Therefore, it was essential that the directions of the act should be pursued strictly: Section 13, act of March 21, 1806, 4 Sm. L. 332.

Mr. George J. Wadlinger, for the appellee:

1. Not a single exception having been taken to, or entered upon the record of the proceedings in the court below, this cause cannot be reviewed by the Supreme Court: Pearson's S.Ct. Practice, § 35; Ruch v. Morris, 28 Pa. 245; Yeager v. Fuss, 9 W.N. 557; Titusville etc. Ass'n v. McCombs, 92 Pa. 364. At all events, the question respecting the award of the mandate execution, more than five years after the date of the judgment, should not be considered, because no such question was raised by the return to the writ: Easton Bor. v. Water Co., 97 Pa. 554.

2. That the directors of the district were required to answer the writ themselves, is apparent from the language of § 19 act of May 8, 1854, P.L. 620. For the reason that they did not do so, we were entitled to the peremptory mandamus. The answer of the treasurer setting up instructions from the school board to retain the money in his hands...