Heathery v. City of Palmyra

• Decision Date: 30 July 1925
• Docket Number: No. 25603.,25603.
• Citation: 276 S.W. 872
• Parties: HEATHER v. CITY OF PALMYRA et al.
• Court: Missouri Supreme Court

276 S.W. 872

HEATHER v. CITY OF PALMYRA et al.

No. 25603.

Supreme Court of Missouri, Division No. 1.

July 30, 1925.

Rehearing Denied October 9, 1925.

Error to Circuit Court, Macon County; Vernon L. Drain, Judge.

Application by Julia Tipton Heather for writ of mandamus to compel the City of Palmyra and others to levy taxes for the payment of a judgment. A judgment awarding peremptory writ of mandamus was rendered, and defendants bring error. Affirmed.

J. F. Culler, of Palmyra, for plaintiffs in error.

Glahn & Diemer, of Palmyra, Rendlen & White and Berryman Henwood, all of Hannibal, and Matthews & Jones, of Macon, for defendant in error.

LINDSAY, C.

Julia Tipton Heather obtained in the circuit court of Macon county a judgment against the city of Palmyra for $7,000, for personal injuries sustained by her, which, upon appeal, was affirmed by the Kansas City Court of Appeals. 245 S. W. 390. Execution issued thereon, and was returned wholly unsatisfied. She then obtained from the Macon circuit court a writ of mandamus, requiring the city and its officers to make a levy of taxes for the payment of the judgment. The proceeding here upon writ of error seeks to reverse the judgment awarding a peremptory writ of mandamus. The amount in dispute, exclusive of costs, is in excess of $7,500, and certain constitutional questions were raised.

The plaintiffs in error challenge the validity of the original judgment, asserting that the circuit court of Macon county was without jurisdiction, either of the parties, or of the subject-matter. The question of lack of jurisdiction was not raised upon appeal to the Court of Appeals. The contention here made by plaintiffs in error is based upon the provisions of certain acts of 1921 and 1923. Laws of Mo. 1921, p. 243; Laws of Mo. Ex. Sess. 1921, p. 50; Laws of Mo. 1923, p. 140. These were the acts undertaking to abolish the judicial circuits of the state theretofore existing.

The suit originally was brought to the October term, 1921, of the circuit court of Marion county, the court wherein the city of Palmyra is situated. At that term, on application of the plaintiff, the venue was changed to Monroe county, and thence, on application of the city, the venue was changed to Macon county. A trial was had at Macon City at the December term, 1922, of the circuit court of Macon county, and the judgment was rendered on February 1, 1922, during said December term. At and prior to the time of the passage at the regular session of the act of 1921, article 3 of chapter 21, R. S. 1919, was in force, and section 2501 of that article. That section provided, among other terms of court, for a regular term of the circuit court of Macon county at Macon City on the second Monday of December of each year. The act of 1921, passed at the regular session, was suspended under the referendum provisions of the Constitution. The subsequent act on the same subject, passed at the special session of 1921 before the election under the referendum provision, was noneffective. These matters were determined and settled, and are set forth in State ex rel. Drain v. Becker (Mo. Sup.) 240 S. W. 229. The provisions of article 3, c. 21, R. S. 1919, and section 2501 of that article, were in force at the time the judgment was rendered. The subsequent act, Laws 1923, p. 140, with its emergency clause, repealed article 3, c. 21, R. S. 1919, and fixed the times of holding court in the judicial circuits of the state, but did not change the times of holding the regular terms of circuit court in Macon county. Beyond all that, the city appeared in the original action, submitted its defense, and raised no question then, nor on appeal, of lack of jurisdiction. The jurisdiction of the circuit court of Macon county over the parties and over the subject-matter, cannot be doubted.

II. The plaintiffs in error next contend that the execution issued on the judgment was void. An execution against a city, returned unsatisfied, forms the basis upon which the writ of mandamus against the city and its officials may issue under the provisions of section 1685, R. S. 1919. The execution issued out of the Macon county circuit court was issued January 16, 1923, and it was made returnable to that court on the second Monday in April, 1923. The objection is that, whereas it so ran, the next succeeding (April) term of said court under the statute, began on the third Monday of April, 1923. The return of the execution was in fact made at the next succeeding April term, 1923.

The city, on January 31, 1923, filed its motion to quash the execution. The grounds of the motion to quash were: (1) That the Macon circuit court was without jurisdiction to render the judgment, and that the clerk of that court was without authority to issue the execution; (2) that the sheriff of Macon county was without authority to serve the execution; (3) that the city, at prior times, had contracted obligations in the issues of its bonds, and that any order, decree, or resolution directing payment of said judgment at that time would impair the obligation of the city's contract under said bonds, in violation of section 10 of article 1, of the Constitution of the United States, depriving the city of its property without due process of law, and denying to it the equal protection of the laws. The city applied for a change of venue upon the hearing of its motion to quash the execution, which motion was denied, and error is assigned upon that.

Enough has been said already upon the question of the validity of the judgment. The consequent authority of the clerk to issue execution thereon is equally clear. In support of the contention that the execution was void, because it was, upon its face, returnable in vacation, or, one week before the April, 1923, term of court, counsel cite Holliday v. Cooper, 3 Mo. 286. That case has no reference to the issuance of the writ of execution, but treats of the original summons issued upon the filing of the plaintiff's petition, the object of which was to notify the defendant of the action and the time and place of holding court. The writ there was the original process, a writ requiring the defendant to appear and answer on the fourth Monday of July, while by the law the term of court at which he was to appear was the first Monday of July. The writ was held void as being one "returnable to no term known to the law of the land." The writ here was final process. Section 1606, R. S. 1919, provides:

"Every execution issued from any court of record shall be made returnable at the next succeeding term, unless the plaintiff, or person to whose use the suit was brought, shall otherwise direct; then it shall be the duty of the clerk issuing the same to make it returnable to the second succeeding term."

In Milburn v. State, 11 Mo. 188, 47 Am. Dec. 148, under the like statutory provision, the question was whether an execution made returnable in vacation was void or only erroneous. It was said, loc. cit. 191:

"The writ in this case was made returnable in vacation, whereas the law requires it to be made returnable to the next succeeding term, unless the plaintiff otherwise directs. Does this error make the writ void? The authorities cited at the bar are decisive upon this point. A writ returnable out of term is merely erroneous and not void."

The suit there was on the bond of a sheriff for failure to serve the execution in question, and it was held the officer was bound to execute the writ and to make return at the succeeding term, and was liable for refusal or failure to do so. This was held to be settled law as to final process.

Also, in Estes v. Long, 71 Mo. 605, it was held that an execution issued out of a court of record, and by mistake of the clerk made returnable before the time fixed by law, is not for that reason void, but continues in force until the time when, by law, it is returnable, and a levy may be made at any day before that time. In this case no property was levied upon nor money paid under the execution. The return was duly made at the succeeding term. The contention of plaintiffs in error upon this point cannot be allowed.

III. In support of the claim that the court erred in denying the application for change of venue of the hearing of the motion to quash the execution counsel cite State ex. rel. v. Dobbs, 118 Mo. App. 663, 95 S. W. 275. The case is not in point here. It involved an application for change of venue in a suit pending. Here the proceeding upon the motion to quash the execution was not in a suit within the meaning of section 1182, nor within the contemplation of section 1357, the section authorizing change of venue in civil suits.

IV. The plaintiffs in error have assigned error in that the court denied the city's application for a change of venue in the mandamus proceeding. "The right to a change of venue is purely statutory and does not exist except in those instances where the statute gives them." Cole v. Cole, 89 Mo. App. loc. cit. 233; State ex rel. v. Wofford, 119 Mo. 375, 24 S. W. 764; State v. Wither-spoon, 231 Mo. 706-716, 133 S. W. 323.

It is to be borne in mind that, in the suit itself, each party had been allowed a change of venue. The mandamus was a proceeding merely ancillary to the suit; a continuation thereof, a species of final process under the statute; a substitute for the unavailing process of execution against a city. Section 1685, R. S. 1919; 26 Cyc. 307; State ex rel. v. Slavens, 75 Mo. 508; State ex rel. Hentschel v. Cook (Mo. App.) 201 S. W. 361; Hubbel v. City of Maryville, 85 Mo. App. 165; State ex rel. v. Norvell, 80 Mo. App. 180; Hartman v. City of Brunswick, 98 Mo. App. 674, 73 S. W. 726; Hambleton v. Town of Dexter, 89 Mo. 188, 1 S. W. 234. The proceeding being of the nature it was, the right to a change of venue did not exist. State ex rel. v. Slavens, supra; State ex rel. v. Cook, supra; Sutton v. Cole, 155 Mo. 206, 55 S. W. 1052.

V. Complaint is made that the court committed...