Evans v. Yost

• Decision Date: 27 January 1919
• Docket Number: 5185.
• Citation: 255 F. 726
• Parties: EVANS, County Judge, v. YOST.
• Court: U.S. Court of Appeals — Eighth Circuit

255 F. 726

EVANS, County Judge, v. YOST.

No. 5185.

United States Court of Appeals, Eighth Circuit.

January 27, 1919

W. C Hawkins and John S. Haymes, both of Buffalo, Mo., for plaintiff in error.

W. D Tatlow and E. Y. Mitchell, both of Springfield, Mo., for defendant in error.

The plaintiff in error, respondent in the court below, seeks by writ of error to reverse a judgment, finding him guilty of contempt of court. The undisputed facts are:

That on October 7, 1908, John B. Henderson, Jr., recovered in the District Court of the United States for the Western District of Missouri a judgment against the county of Dallas, Mo., for $1,023,020.19, with interest specified in the judgment, which judgment was duly assigned by Mr. Henderson to the defendant in error. The judgment was on bonds issued by the county of Dallas in 1870-1871, under the provisions of a special act of the General Assembly of the state of Missouri, entitled 'An act to incorporate the Laclede & Ft. Scott Railroad Company,' approved January 11, 1860. Laws 1859-60, p 434. Section 14 of that act provided: 'It shall be lawful for the county court of any county in the state to subscribe to the stock of said company, or invest its three per cent. fund or any other internal improvement fund belonging to the county, as stock in said road; and for the stock subscribed in behalf of the county, may issue the bonds of the county to raise the funds to pay for same, and to take proper steps to protect the interests of the county, may appoint an agent to represent the county, vote for it, and receive dividends. Any incorporated city, town, or company may subscribe to the stock in said railroad company, and appoint an agent to represent its interests, give its votes, and receive dividends, and may take proper steps to guard and protect the interest of the said city, town or company. ' This act was silent as to tax levies for the payment of the bonds or interest. At the time these bonds were issued, there was a general statute relating to such subscriptions, which provided: (section 18, page 338, General Statutes of Mo. 1865): 'But the total amount of tax levied for railroad purposes in any one year, in any county, city or town, shall not exceed thirty per centum of the subscription made by such county, city or town.'

On the petition of the judgment creditor an alternative writ of mandamus was issued by the court requiring the judges of the county court of the county, which under the laws of the state levies all county taxes, to show cause why they should not be compelled to levy and cause to be collected a tax to pay the judgment of the relator. A return was made to the writ, and on May 1, 1912, after a hearing, the court granted a peremptory writ of mandamus, directing the county judges to levy, for the current fiscal year, 1912, a special tax to realize the sum of $70,500 upon the taxable property of the county, and when collected to be paid on the judgment. This writ was disobeyed, and no tax whatever levied, although duly served on the respondents. At the April term, 1913, of the court, the relator filed another petition for mandamus, in which it was alleged that at the October term, 1912, writs of attachment for contempt had been issued by the court against the county judges and placed in the hands of the United States marshal for the district, but could not be served, as they evaded arrest by concealing themselves. The prayer was to the effect that they be required to levy a tax to raise the said sum of $70,500 for the year 1912, and a tax to collect a similar sum for the year 1913, or in the aggregate sum of $141,000. The petition further prayed that the marshal should serve the alternative writ, when issued, on each of the respondents in person, if they be found by diligent search, and, if either of them cannot be found by diligent search, the delivery of a copy thereof to be delivered to a member of the family of such defendant over the age of 15 years at the usual place of abode of such defendant. The court granted the petition for the alternative writ at the April term, 1913, and that it be served as prayed in the petition. Nothing was accomplished under this order.

At the April term, 1917, another petition, reciting the facts as set out in the petition of 1913, that no tax has ever been levied to pay this judgment, prayed that they be required to levy a tax to net $70,500 for each of the years 1912, 1913, and 1917, a total sum of $211,500, to be served in the same manner as provided by the judgment entered in 1913. The court made an order in conformity with the prayer of the petition. The marshal's return shows that being unable, after diligent search, to serve the plaintiff in error with the writ, he 'delivered a certified copy of it to Ruby Evans, a member of the family of J. S. Evans, associate judge of the county court of said county, over the age of 15 years, in the absence of J. S. Evans, whom I was unable to locate after diligent search. ' At the October term, 1917, the cause came on for hearing, whereupon the court found that the respondent had been properly served with the alternative writ, and granted the peremptory writ as prayed in the petition, directing service thereof on the defendants in person, 'if they can by diligent search be found, and, if they cannot be found by the marshal after diligent search, then by delivering a copy of said writ to a member of the family of said defendant who cannot be found over the age of 15 years at the usual place of abode of such defendant.'

The marshal's return shows the service on the defendant Evans was made by delivering a certified copy of the writ to Ruby Evans, in the same manner as shown by his return of service of the alternative writ hereinbefore set forth.

On March 27, 1918, the defendant in error filed a petition for attachment against the three county judges, including the plaintiff in error, setting out the proceedings hereinbefore recited, and that with full knowledge and due notice of the order of the court, and of the peremptory writ, and of all the proceedings prior thereto, but with the intent to attempt to defeat the ends of justice, and to hinder and delay the enforcement of the order of the court, they have entirely failed to comply with the commands of the peremptory writ of mandamus, and have failed and refused to make the levy as directed to be made by said writ, and in all things have failed to comply therewith, and have by their actions defied this court, and disobeyed the writ and mandate of this court, and are now in open, palpable, and flagrant contempt of this court. Upon presentation of this petition the court ordered an attachment of the bodies of the defendants. The writs were duly issued and the plaintiff in error arrested by the marshal. The plaintiff in error thereupon filed a motion to quash the peremptory writ of mandamus and the attachment issued and founded thereon, assigning as grounds therefor:

'First. There is no authority under the law for the levying of $211,500 for the purpose stated and required by said writ of mandamus, and the petitions upon which said writ is founded so state and declare.

'Second. There was no service of said writ of mandamus on this defendant as required by law, and the marshal's return so shows.

'Third. The writ of mandamus was not properly served by the delivery of a copy thereof to a member of this defendant's family over the age of 15 years at his usual place of abode.

'Fourth. The writ of mandamus was not issued and served in the manner required by law, and no writ of attachment could issue thereon.'

Upon a hearing the motion was overruled by the court, and the plaintiff in error, resting on the motion, was adjudged by the court to be guilty of contempt and sentenced to imprisonment.

The assignments of error are:

'First. The court erred in overruling the motion filed by this defendant, J. S. Evans, on April 1, 1918, to vacate, set aside, and quash the writ of mandamus, issued herein on the 8th day of October, 1917, the return of the marshal thereon, and the attachment issued and founded on said writ of mandamus, and dated on the 22d day of January, 1918, and to discharge this defendant from said attachment.

'Second. The court erred in sentencing this defendant, to the jail of Jackson county, Missouri, under the records and showing in this cause.'

Before SANBORN, Circuit Judge, and TRIEBER, District Judge.

TRIEBER District Judge (after stating the facts as above).

It is contended that a peremptory writ of mandamus must be served personally, and as the writ in this case was not served on the plaintiff in error in person, but only on a member of his family, as authorized by the order of the court, he need not obey it.

There is no statute of the state of Missouri regulating the service of writs of mandamus, but ...