State ex rel. Hambleton v. Town of Dexter

• Decision Date: 07 June 1886
• Citation: 1 S.W. 234,89 Mo. 188
• Parties: Hambleton, Administrator, v. The Town of Dexter, Appellant
• Court: Missouri Supreme Court

1 S.W. 234

89 Mo. 188

Hambleton, Administrator, v. The Town of Dexter, Appellant

Supreme Court of Missouri

June 7, 1886

Appeal from Stoddard Circuit Court. -- Hon. R. P. Owen, Judge.

Reversed.

Smith & Krauthoff and S. G. Kitchen for appellant.

(1) The matters necessary to constitute the relator's right and the defendant's duty and obligation, must be distinctly charged, since the courts will not infer fault or dereliction on the part of the said defendant. An alternative writ which fails to state these facts, is fatally defective. High. Ext Leg. Rem., secs. 10, 536, 537, 538; State ex rel. v Governor, 39 Mo. 388, 400; State v. Everett, 52 Mo. 89, 94; Hawkins v. More, 3 Ark. 345, 350; Rex v. Oxford, 7 East, 345; McKenzie v Ruth, 22 Ohio St. 371; Trustees v. People, 12 Ill. 254. (2) There is no allegation in said alternative writ that the town of Dexter is a corporation, nor is it stated under what law it exists; nor that the defendants are the officers who have the power to levy taxes. Judicial notice of these matters cannot be taken. City v. Ry., 79 Mo. 98. (3) Nor is the manner of levying the tax stated, or the property to be charged with it. The writ is defective in these particulars. Hartshorn v. Assessors, 60 Me. 276; State v. Milwaukee, 22 Wis. 397; People v. Brooks, 57 Ill. 142; State v. Co. Judge, 12 Ia. 237. (4) The finding ought to have been for the defendant on the evidence. The first town and against which the judgment was obtained was incorporated in 1874, the present one was incorporated in 1877. The incorporation of the latter had the effect of disincorporating the previous town, as there cannot be two municipal corporations in the same territory, exercising the same or similar powers, jurisdiction and privileges. City, etc., v. Society, 4 Zab. 385; Rex v. Pasmore, 3 Term. 190, 243; Taylor v. Fort Wayne, 47 Ind. 274. (5) The writ of mandamus cannot have the effect of bringing into being a new judgment against a party not a party to a previous one. It can only be used to require the defendant in the judgment to take the requisite steps to levy a tax to pay it. In no sense is this writ a creative remedy. High Ext. Lex. Rem., sec. 7; People v. Gilmer, 5 Gilm. 242, 248; People v. Hatch, 33 Ill. 148; People v. Chicago, 51 Ill. 17-28.

H. H. Bedford for respondent.

OPINION

Black, J.

This is an appeal from the judgment of the circuit court awarding a peremptory writ of mandamus directing the respondents below, as trustees of the town of Dexter, to levy and collect a tax to pay a judgment. The relator, Hambleton, is the administrator of the estate of Benj. R. Temples. Temples, on the thirteenth of March, 1876, recovered a judgment against the town of Dexter; the judgment remains wholly unpaid.

By section 2415, Revised Statutes, the relator could have sued out an execution, and when returned unsatisfied, applied for and had a writ of mandamus directing the proper officers of the town, if incorporated, to assess and collect a special tax to pay the execution. This section we have held affords a summary remedy in such cases. State ex rel. v. Slavens, 75 Mo. 508. Instead of pursuing this course the relator presented a formal petition for writs of mandamus. The respondents moved to quash the alternative writ on the ground that it did not show that an execution had been issued upon the judgment, and for the further reason that the writ did not show that the defendants had any authority to provide for the payment of the judgment by taxation. Error is assigned to the action of the court in overruling this motion. The alternative writ is the first pleading, and stands as the declaration in a common law action. To this writ, and not the petition for the writ, the respondents are called upon to plead. While it should appear that the relator has no other adequate remedy, it is not necessary to allege that an execution has been issued and proved unavailing. It is enough to state that the town has no property whereon to levy an execution, and has no money in its treasury subject to the payment of the judgment. High on Ex. Leg. Rem., sec. 377. The petition for the writ contains in substance these allegations, but for some reason they are omitted in the alternative writ, and hence can be of no benefit to relator on the motion to quash. The allegation that the treasurer had refused to pay the judgment can hardly be regarded as sufficient, for although he refused to pay the judgment, still, if there was money in the treasury, the appropriate prayer of the writ would be for a warrant thereon.

But a more fatal objection to the writ is, that while it describes the respondents as trustees of the town of Dexter, it does not appear by any of the pleadings that the town is incorporated, nor are...