Sch. Dist. No. 11 v. Lauderbaugh

• Decision Date: 31 October 1883
• Citation: 80 Mo. 190
• Parties: SCHOOL DISTRICT NO. 11 v. LAUDERBAUGH, Appellant.
• Court: Missouri Supreme Court

80 Mo. 190

SCHOOL DISTRICT NO. 11

v.LAUDERBAUGH, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jasper Circuit Court.--HON. M. G. MCGREGOR, Judge.

REVERSED.

Smith & Krauthoff with A. L. Thomas for appellant.

J. R. Shields for respondent.

HENRY, J.

This is a proceeding by mandamus, in which an alternative writ was issued by the circuit court of Jasper county reciting all the allegations of the petition, and was as follows:

“State of Missouri.

To Isaac Lauderbaugh, Clerk of School District No. 1, Township 29, Range 32, Jasper County, Missouri:

Whereas, it has been represented to our honorable circuit court by petition of school district No. 11, township 29, range 32, Jasper county, Missouri, that at the March term of the circuit court of Jasper county, Missouri, a peremptory mandamus was issued by this honorable court and directed to Elbert Pinney, Isaac Lauderbaugh and Thomas Cone, trustees of school district No. 1, township 29, range 32, Jasper county, Missouri, commanding and requiring them, immediately on receipt of said writ of mandamus and without delay, to appoint a disinterested freeholder, non-resident of said district No. 1, to act as one of a committee of three to value and appraise the school property of said district No. 1, and report the same to the clerks of districts Nos. 1 and 11, so that said school property might be appraised and an amount assessed and collected from said district No. 1, and paid to said district No. 11, according to the pro rata share or interest said district No. 11 may have in said school property, etc.; And whereas said writ was duly served on the said directors of district No. 1, according to law, and in pursuance thereof, to-wit: on the 16th day of February, 1880, they appointed one William Hille to act as their representative in the premises; And whereas said district No. 11 had long prior thereto appointed one C. P. Ball to represent district No. 11, and said Hille and Ball, in pursuance of the order of this court and the statutes in such cases made and provided, did appoint one Isaac Johnson, duly qualified according to law, to act with the said Hille and Ball to appraise and assess said school property, in order that the proper amount should be collected off of school district No. 1 and applied to school district No. 11; and that in pursuance of said appointment, the said committee, Johnson and Ball, (Hille not acting,) met and made the proper estimate under the order of this court of the amount due to said school district No. 11 from school district No. 1, as aforesaid, and certified said amount so found by them to be due to the clerks of said districts on the _____ day of______, 1880; and that Isaac Lauderbaugh was at the time said sum was so certified, and now is, clerk of said district No. 1; and that said Isaac Lauderbaugh, though often requested by the directors of said district No. 11, to cause the amount then certified to him as clerk as aforesaid, to be levied on the property in said district, as is required by section 20 of the school law of this State in such cases made and provided, has refused, and still refuses, to perform his duty in the premises; and said petitioner (school district No. 11) is entirely without remedy in the premises unless it be afforded by the interposition of this honorable court; petitioner prays that a writ of mandamus issue against the said Isaac Lauderbaugh, clerk of district No. 1, township 29, range 32, Jasper county, Missouri, commanding him, as such clerk, to cause the amount certified to him by the committee aforesaid, to-wit: the sum of $390.50, to be levied and collected off of district No. 1 and applied to the use of district No. 11, as required by law, and such other order be made in the premises as justice may require. Now, therefore, being willing that full and speedy justice be done in the premises, we do command you, the said Isaac Lauderbaugh, clerk of district No. 1, as aforesaid, that immediately on receipt of this writ, you so cause to be levied and collected off of school district No. 1, for the use of said district No. 11, the amount certified to you as clerk aforesaid, by the committee appointed by the order of this court, to-wit: Isaac Johnson and C. P. Ball, and amounting to the sum of $390.50, or show cause at, etc., on, etc., why you have not done so.”

On the day named, the defendant appeared and moved to quash the said alternative writ, assigning the following reasons: 1. The same was improperly and improvidently ordered by the court. 2. The said writ does not state facts sufficient to warrant its issuance or the relief prayed. 3. It does not appear from said writ that any obligation or duty was imposed by law on defendant to do the acts commanded. 4. It does not appear from said writ that defendant has failed to do any duty enjoined on him by law. 5. It does not appear that defendant is the clerk of any school district duly incorporated for school purposes. 6. It does not appear that any sum of money has ever been found due by competent authority from district No. 1 to district No. 11.

This motion was by the court overruled, and the defendant excepted, and declining to plead further, final judgment was rendered awarding a peremptory writ as prayed. The defendant, thereupon, having unsuccessfully moved to arrest the judgment, filed his bill of exceptions, and brings the case here by appeal.

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