Richmond v. Kettelle
| Decision Date | 26 April 1919 |
| Docket Number | Nos. 310-312.,s. 310-312. |
| Citation | 106 A. 292 |
| Parties | RICHMOND v. KETTELLE, Town Treasurer (three cases). |
| Court | Rhode Island Supreme Court |
Appeal from Superior Court, Kent County; Edward W. Blodgett, Judge.
Petitions for mandamus by Florence D. Richmond, Phoebe L. Richmond, and Rutherford b. H. Richmond, respectively, against Samuel Kettelle, Town Treasurer. The petitions were granted, and respondent appeals. Petitioners permitted and required to amend their petitions and orders below reversed.
Quinn & Kernan, of Providence, for appellant.
Nathan b. Lewis, of West Kingston, for appellees.
These are three several petitions for mandamus to compel the respondent town treasurer to pay certain judgments held by petitioners, and are in all respects identical except as to the names of the petitioners and the amount of their respective claims. The prayers of the petitions were granted in the superior court in the county of Kent, orders being entered therein on the 12th day of September, 1918, that writs of mandamus issue commanding the respondent to pay the judgments; and appeals therefrom to this court were taken by the respondent.
The facts appearing of record, by admission of the parties, are substantially as follows: The petitioners, on the 30th day of October, 1912, obtained judgments of the superior court in the county of Kent against John E. Cole, then town treasurer of the town of West Greenwich; Florence L. Richmond, for the sum of $545.37, debt and costs of suit taxed at $9.25; Phoebe L. Richmond, for the sum of $605.11, debt and costs of suit taxed at $9.25; and Rutherford b. H. Richmond for the sum of $1,090.68, debt and costs of suit taxed at $9.25. John E. Cole, town treasurer as aforesaid, never paid or satisfied said judgments, or either of them, or any part thereof, during his continuance in office, although demand was made upon him at different times by the attorney of said judgment creditors.
On the 3d day of November, 1914, said John E. Cole ceased to be town treasurer of said town, and was succeeded in that office by Samuel Kettelle, the respondent in these cases, who was duly elected town treasurer of said town of West Greenwich on the date last aforesaid, and soon thereafter duly qualified as such town treasurer. Said Samuel Kettelle as such town treasurer has never paid said judgments, or either of them, or any part thereof, although repeated demands have been made upon him by the petitioners through their attorney.
The petitions for mandamus in these cases were all filed in the office of the clerk of said superior court in Kent county on October 22, 1917, and citations to the respondent were ordered to be issued on the same day by the justice then holding the session of said court. Said citations were made returnable October 31, 1917, were duly served and returned to said court.
On November 8, 1917, counsel for respondent filed a demurrer and answer in each case as follows:
Respondent's Demurrer.
And now comes the respondent, Samuel Kettelle, as town treasurer, and demurs to the petitioner's said petition, and for causes of demurrer states:
(1) It does not appear in and by said petition that the petitioner has ever taken out execution upon said judgment.
(2) Or that said petitioner has ever caused an execution, based upon said judgment, to be served upon the said John E. Cole as town treasurer or upon the present town treasurer, this respondent.
(3) It does not appear in and by said petition that the petitioner has kept said judgment alive by summoning in this respondent as successor to the said John E. Cole as town treasurer.
(4) It does not appear in and by said petition that this respondent has ever been made a party of record in the cause in which said judgment was rendered.
Wherefore the respondent prays judgment, and that the petition may be dismissed.
Answer of the Respondent.
And now comes the respondent, Samuel Kettelle, as town treasurer of the town of West Greenwich, not waiving his foregoing demurrer but insisting thereupon, in the event of said demurrer being overruled makes answer to said petition as follows:
First. He is wholly unable to pay said judgment, for the reason that he has no funds in his hands as town treasurer with which to make such payment.
Second. Said judgment has lapsed and become unenforceable against the town of West Greenwich or against the town treasurer thereof because the petitioner has failed to summon in this respondent as successor to the said John E. Cole, as party defendant to said judgment.
All of which matters and things this respondent is ready to aver, maintain, and prove as this honorable court may direct, and prays to be hence dismissed with reasonable cost and charges.
On December 19, 1917, counsel for petitioners filed a motion and demurrer in each case as follows:
Petitioner's Motion.
And now comes the petitioner in the above-entitled case, and moves that the demurrer of the respondent be overruled and dismissed, for that:
(1) There is no provision known to the law for issuing an execution against a town or municipal corporation in this state.
(2) There is no provision in law for issuing an execution against a town treasurer in this state. The statute provides the mode of paying judgments against town treasurers, and that mode is exclusive of other methods.
(3) The provisions of the statute in relation to summoning in the successor of a town treasurer who has ceased to hold the office applies only to pending suits, and not to cases which have been prosecuted to judgment.
(4) Samuel Kettelle as the successor of the said John E. Cole is in privity with said Cole, and is legally bound to pay the judgment obtained by the petitioner against said Cole as town treasurer. A judgment against a town treasurer is virtually a judgment against the town, and binds his successors in said office until paid.
Petitioner's Demurrer.
And as to the answer of said respondent by him above pleaded, the said petitioner comes and demurs thereto, and for causes of demurrer, says:
(1) That in case said respondent has no funds in his hands as town treasurer with which to pay and satisfy said judgment, the statute provides a speedy method by which he can secure adequate funds for the payment of the same.
(2) There is no provision of law which requires a judgment creditor of a town in this state to summon into court a successor of the town treasurer against whom the judgment was rendered, in order to keep said judgment alive. Each and every town treasurer when elected and qualified takes the office with all the liabilities with which it is burdened.
It is admitted by agreement on file that the statements in the respective pleadings are true so far as they purport to he statements of fact. One of these facts to which attention is particularly called is the statement in the answer of the respondent Kettelle "that he has no funds in his hands as town treasurer with which to make such payment" (1. e., payment of these judgments). It also appears that said Kettelle was duly elected and qualified as town treasurer of West Greenwich in November, 1914, as successor to John E. Cole, and remained such town treasurer at the time of filing these petitions and continuously thereafter to the entry of the judgments (September 12, 1918) and thereafter, pending these appeals in this court, at the time of hearing on March 10, 1919.
Before taking up in detail certain particular questions argued by counsel in the case at bar, it will be useful to take a glance at the early colonial and state laws bearing upon suits to recover moneys due from towns. The earliest act which we have found appears in a compilation or digest of "Laws and Acts of her Majesties Colony of Rhode Island," etc. (1636 to 1705) printed by Sidney S. Rider and Burnett Rider in 1896. In this volume there appears on page 50 of the reproduced manuscript laws, and on page 26 of the printed portion, the following act, viz.:
This act appears to have been passed at Portsmouth session of August, 1659. See 1 R. I. Col. Rec. p. 419, p. 424.
It appears, however, that the above-quoted act did not remain long in force, for we find that at a session of the General Assembly held in Newport, October 31, 1677, a much more comprehensive act relating to recovery of debts due from towns was passed, which seems to have superseded the act above quoted (which act we do not find reprinted in any of the subsequent compilations or digests). The act of 1677 is as follows, viz.:
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