Fry v. Comm'rs of Montgomery Cnty.

• Decision Date: 31 January 1880
• Citation: 82 N.C. 304
• Parties: DANIEL FRY v. COMMISSIONERS OF MONTGOMERY COUNTY.
• Court: North Carolina Supreme Court

82 N.C. 304

DANIEL FRY

v.COMMISSIONERS OF MONTGOMERY COUNTY.

Supreme Court of North Carolina.

January Term, 1880.

MOTION for an Alias Mandamus heard at Fall Term, 1879, of MONTGOMERY Superior Court, before Buxton, J.

After due notice given by the plaintiff of a motion to renew an order for a writ of mandamus to be issued to defendant commissioners, His Honor made the following order: It appearing from an inspection of the record in this case that plaintiff recovered judgment against defendants at fall term, 1875, for four hundred and fifteen dollars and ninety-seven cents, and obtained a writ of mandamus at spring term 1876, commanding defendants to levy and cause to be collected according to law a tax sufficient to pay said judgment and costs, and apply the same as speedily as practicable in satisfaction thereof, and to report to this court their compliance with this order; and it further appearing that defendants have disregarded said order, and that said judgment still remains unpaid: It is therefore ordered by the court that an alias mandamus issue to defendants returnable to the next term, again commanding them to perform the order heretofore made in this case--requiring them to provide the means and apply the same to the payment of the plaintiff's debt and costs, and to certify their obedience to this order at the next term of this court. Defendants appealed.

Messrs. Hinsdale & Devereux, and Neill McKay, for plaintiff .

Messrs. M. S. Robbins and J. T. Crocker, for defendants .

DILLARD, J.

It is settled by the decisions of this court that a party may sue to recover a debt due from a county, and in the same action may demand a mandamus for its payment. McLendon v. Com'rs of Anson, 71 N. C., 38; Lutterloh v. Com'rs of Cumberland, 65 N. C., 403. The mandamus issued on the establishment of a debt by judgment is usually an alternative mandamus and on insufficient cause shown for non-compliance therewith the course is to issue a peremptory mandamus. Tucker v. City of Raleigh, 75 N. C., 272.

In this case the plaintiff proceeded in accordance with the law as established in this state. He brought his action to fall term, 1875, for judgment on a money demand, and also for mandamus. At the return term, the defendants failing to appear and answer, judgment by default according to the course and practice of the court was entered, and a writ of mandamus ordered to issue at the expiration of six months, commanding the defendants at the proper time to raise by taxation the means and apply the same to the satisfaction of plaintiff's debt, and to make return to court of their action under the writ. The writ was issued as ordered and the debt not being paid, and no return made by defendants according to the command of the writ, the plaintiff on the 12th of February, 1878, notified defendants to appear in court at spring term next after, and show cause, if any they had, against the issue of a peremptory writ of mandamus. The motion was continued from term to term until fall term, 1879, when defendants showed for cause, that they had exhausted all the funds, they were authorized annually to collect, in payment of the current expenses of the county, and also the special taxes levied under chapter 128 of the acts of 1874-'75, for the special purposes mentioned in...