State ex rel. Cassidy v. Slavens
| Citation | 75 Mo. 508 |
| Parties | STATE ex rel. CASSIDY v. SLAVENS et al., Appellants. |
| Decision Date | 30 April 1882 |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.
AFFIRMED.
The petition filed in the trial court alleged the recovery in that court of a certain judgment by the relator against the City of Kansas, the issuance of an execution and the return by the sheriff of nulla bona thereon; that the defendants were the mayor and common council of that city, empowered by its charter to provide by ordinance for the levying and collection of all taxes for city purposes; and prayed that defendants might be commanded to levy a special tax to pay the execution. The court thereupon ordered an alternative writ of mandamus to be issued, which was returned “Served by delivering a copy thereof to each of the defendants.” Defendants moved the court to quash the writ upon the ground, among others, that no demand to levy any tax had ever been made or refused, and that the petition did not state facts sufficient in law to authorize the court to grant the writ. This motion was overruled. The clerk then filed a motion for security for costs upon the ground that the relator was a non-resident of the State; and, upon that ground also and because relator had not filed the written undertaking of any resident of the State for the payment of costs as provided by the statute, defendants filed a motion to dismiss. These motions were, upon relator's motion, stricken from the files. Defendants then filed an application for a change of venue upon the ground of prejudice on the part of the judge, which was overruled. Defendants then filed their return to the alternative writ, and relator's motion to quash the same was sustained. A motion for a new trial having been overruled, defendants bring the case to this court by appeal.
S. P. Twiss for appellants.
M. Campbell for respondent.
Section 77, 1 Wagner's Statutes, 617, controls this case. That section provides that whenever an execution issued out of any court of record in this State against any incorporated town or city shall be returned unsatisfied, etc., such court may by writ of mandamus compel the proper officers to levy a special tax to pay such execution and all costs. In our opinion when the remedy provided for by this section is invoked, no formal petition or application for the issuance of an alternative writ is necessary. It would seem to be sufficient to show...
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Heather v. City of Palmyra
...out or provided by statute for a judgment creditor to collect from an unwilling debtor city. R. S. 1919, sec. 1685; State ex rel. Cassady v. Slavens, 75 Mo. 508; Hubbell v. City of Maryville, 85 Mo.App. State ex rel. v. Norvelle, 80 Mo.App. 180; Hartman v. City of Brunswick, 98 Mo.App. 674;......
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State ex rel. Sharp v. Knight
...court relative to changes of venue no such change can be granted under such circumstances in any case. [Cole v. Cole, supra; State ex rel. v. Slavens, 75 Mo. 508; Heather City of Palmyra, 276 S.W. 872, 875; State ex rel. v. Cook, supra.] It is worthy of comment that in none of these cases w......
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Heathery v. City of Palmyra
...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. Norve......
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Cloud v. Inhabitants of Pierce City
...erred, for the reason that no alternative writ had been issued, but a peremptory writ in the first instance. Even State ex rel. Cassidy v. Slavens et al., 75 Mo. 508, which holds that a petition is not necessary, recognizes the fact that plaintiff must first call for an alternative writ. An......