Fisher v. The Mayor
| Decision Date | 02 April 1881 |
| Citation | 17 W.Va. 628 |
| Court | West Virginia Supreme Court |
| Parties | Fisher v. The Mayor, Recorder, &c.; of the Cityof Charleston.Same v. Same.Same v. Same. |
1. In this State the court may issue an alternative writ of mandamus upon the filing of the petition without issuing any previous rule to show cause why a mandamus should not be awarded, though the court may in its discretion in a particular case decline to issue an alternative writ of mandamus, until a rule to show cause why a mandamus should not issue has been issued and returned.
2. Upon a petition sworn to, setting forth that the plaintiff has obtained a certain judgment against a city, and that an execution on such judgment has been issued and returned " no property found," and that the plaintiff knows of no property of the city, out of which such judgment can be made, the court ought to award an alternative writ of mandamus.
3. Such alternative writ of mandamus should issue, though the prayer of the petition erroneously asked, that a writ of mandamus might be awarded against the treasurer, mayor, recorder and counciimen of the city, commanding them to levy a tax upon the taxable property within the corporate limits of the city sufficient to satisfy the plaintiff's judgment, interest and costs, or show cause why they should not do so.
4. Such alternative writ of mandamus should not issue against the treasurer of the city, but should issue against the city by its corporate name, and should command it by its mayor, recorder and counciimen, naming them, to levy a tax upon the taxable prop- erty within the corporate limits of the city sufficient to satisfy the plaintiff's judgment, interest and costs and to sei; it aside to pay the same, or show cause why they should not do so.
5. It would be erroneous to include in such a mandamus an order directing the tax so set apart to be paid over, as the mayor, recorder and councilmen are not authorized to pay debts, This can only be done by the treasurer.
G. The peremptory writ of mandamus must strictly follow the command of the alternative writ of mandamus.
1. The alternative writ of mandamus should have a preamble or inducement preceding the commanding clause, which should set out all the facts necessary to make out the plaintiffs case with the same certainty and precision, that is required in a declaration in an ordinary suit. But such facts are stated by way of recital or after a "whereas," and are not required to be stated otherwise as in an ordinary declaration.
8. Such inducement in such a case should set out, that it is represented, that these facts exist: first, the obtaining of the judgment; second, that an execution was issued thereon and had been returned "no property found;" third, that the city had no property out of which the judgment could be made; fourth, that the judgment, nor any part thereof, had been paid; and last, that the city was a municipal corporation, authorized by law by its mayor, recorder and councilmen to levy a tax on all the property within the corporate limits of the city and to set it apart for the payment of plaintiff's judgment, &c. And these facts should be stated with the precision requiredon stating necessary facts in a declaration in an ordinary suit.
9. When several judgments have been obtained against a city by the same plaintiff, who at or about the same time institutes against it several mandamus proceedings to enforce the payments of such judgments, and upon a rule to show cause why they should not be consolidated it appears, that there is but one and the same defence in each of the cases, an order should be made to consolidate them, though the judgments were rendered at different times; and but one set of costs should be taxed, whether incurred before or after the order of consolidation, if but it appears, that the plaintiff had reason to believe, and did believe, that theret would be different defences in the several cases, the court should direct, that the order of consolidation should not affect costs previously incurred, otherwise it should not so direct.
10. In this State, if the defendant fails to make a return to an alternative writ of mandamus, there is no obligation on the court to compel the making of such return by rules and attachments; but the court may at once issue a peremptory writ of mandamus, or it may in a proper case enlarge the time in which the defendants may make a return.
Writ of error and supersedeas to a judgment of the circuit court of the county of Kanawha, rendered on the 16th day of June, 1879, in three consolidated suits in said court then pending, in each of which Henry J. Fisher was plaintiff and the mayor, recorder and counciimen of the city of Charleston were defendants, allowed upon the petition oi said defendants.
Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgment complained of.
Green, President, furnishes the following statement of the case:
In the first of these cases Henry J. Fisher presented to the Hon. Joseph Smith, judge of the circuit court of Kanawha, in vacation on August 18, 1878, his petition setting forth, that he had obtained against the city of Charleston a judgment in the county court of Kanawha county on January 15, 1878, for $304.85 with interest from that date and $11.10 costs. An execution was issued on said judgment and returned "no property foundand he knows of no property of said city of Charleston out of which he can make his said judgment; and he prays, that a writ of mandamus be awarded him against the mayor, recorder, and counciimen of said city, naming them, and against the treasurer of said city, naming him, returnable to the then next term of the circuit court of Kanawha, commanding them to levy a tax upon the taxable property of said city of Charleston sufficient to satisfy said judgment, interest and costs, or show cause, if any they could, why they should not do so. The petition recites, that the mayor, recorder and counciimen under the laws of the State of West Virginia constitute the corporation called the "city of Charleston," This petition was supported by affidavit.
On its presentation the judge in vacation ordered, that a writ of mandamus should issue against the mayor, treasurer, recorder and councilmen of said city of Charleston returnable to the circuit court of Kanawha conn by on the first day of the next term, commanding A. P. Gates, treasurer of said city, to pay over to the said Henry J. Fisher any money in his hands otherwise unappropriated not exceeding the amount of the judgment of the plaintiff against the said city of Charleston, describing it, and for want of said funds commanding the said mayor, recorder and councilmen to levy a tax upon the taxable property of said city within the corporate limits of said city, sufficient to satisfy the said judgment, interest and costs, and set apart the proceeds of said tax for the payment of the said judgment, interest and costs, and to pay over the proceeds to the said plaintiff, or show cause, if any they can, why they should not do so.
Thereupon the clerk of said court issued an alternative writ of mandamus on September 4, 1878, which recited, that Henry J. Fisher had appeared before the judge of the circuit court of Kanawha county in vacation on August 18, 1878, and presented his petition against the mayor, recorder, treasurer and councilmen of the city of Charleston praying, that a writ of mandamus should issue against them, and that on said lay said judge had ordered said writ of mandamus to be issued. The writ then proceeded to command the parties following strictly the language used in the order of the judge made in vacation. This alternative writ of mandamus was duly served on all the defendants and duly docketed, and afterwards during the same term of the court on motion of Henry J. Fisher was amended, first, by striking out the name of A. P. Gates, treasurer, as one of the parties, to whom the writ was addressed, and by changing the recitals in the writ by inserting in lieu of a portion thereof: "and whereas it appearing by the petition and affidavit of the plaintiff, that he recovered a judgment against the city of Charleston on the 15th day of January, 1878, in the county court of Kanawha county, State of West Virginia, for the sum of $304.85 with interest thereon from said 15th day of January, 1878, until paid and $11.10 costs of suit; that execution had been issued on said judgment, and had been returned by the sheriff of Kanawha county ' no property found/ and that said judgment is wholly unpaid, and that the said city has no property out of which said judgment can be made, and that said city is a municipal corporation, and that its affairs are managed by its mayor, recorder and counciimen, as named in the caption of said writ, who perform all the duties of the corporation in relation to levying and collecting and paying its debts, and whereas by order of the judge of the circuit court of Kanawha county made on the 18th day of August, 1878, under his hand said writ of mandamus was directed to be issued, we therefore command you," &c.
The defendants objected to this amendment being made, and after it was made, moved to quash the alternative writ as amended. About the same time this petition was filed, two other similar proceedings were instituted by the plaintiff, Fisher, against the same defendants to enforce severally the payments of two several judgments of the county court of Kanawha against the city of Charleston in his favor, one for $104.88, with interest from January 15, 1878, and costs, and the other for $303.00 with interest from December 23, 1876, and costs. These are the two other cases included in the writ of error before this court. The proceedings in these two cases were except in the amount and date of the judgments of the plaintiff, the payment of which was sought to be enforced, in all respects alike. Similar proceedings were instituted about the same time to enforce the...
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