State ex rel. Pyle v. University City

• Decision Date: 21 June 1928
• Docket Number: No. 28118.,28118.
• Citation: 8 S.W.2d 73
• Parties: THE STATE EX REL. CLEAVER PYLE, Administrator of Estate of FRANK PYLE, v. CITY OF UNIVERSITY CITY ET AL., Appellants.
• Court: Missouri Supreme Court

8 S.W.2d 73

THE STATE EX REL. CLEAVER PYLE, Administrator of Estate of FRANK PYLE, v. CITY OF UNIVERSITY CITY ET AL., Appellants.

No. 28118.

Supreme Court of Missouri, Division Two.

June 21, 1928.

Appeal from Circuit Court of St. Louis County. — Hon. J.W. McElhinney, Judge.

REVERSED AND REMANDED (with directions).

Karl M. Vetsbury for respondent.

(1) The alternative and peremptory writs of mandamus are in proper form and were properly issued. State ex rel. Poole v. City of Willow Springs, 183 S.W. 589; Conner v. City of Nevada, 188 Mo. 148; Menar v. Sanders, 183 S.W. (Ky.) 949; Flagstaff v. Gomez, 242 Pac. (Ariz.) 1003; Bloomington v. Perdue, 99 Ill. 329; Lorence v. Bean, 18 Wash. 36; Gray's Limitations of Taxing Power, sec. 2089. (2) Constitutional limitations on levies by cities do not apply to judgments sounding in tort. Cases above. (3) The statutes cited by appellant relate to levies for contractual matters and have no bearing on matters ex delicto. Cases above, and Sec. 8452, R.S. 1919. (4) Sections 11 and 12 of Article 10 of the Constitution must be read and construed together; and neither section has reference to matters ex delicto. Lamar v. Lamar, 128 Mo. 216; Harris v. Bond Co., 244 Mo. 693; Book v. Earl, 87 Mo. 252.

Joseph H. Grand for appellants; Greensfelder, Rosenberger & Grand, of counsel.

(1) The proceedings ought to be stayed, and no opinion rendered, until the validity of the administrator's judgment against the city has been finally adjudicated. The pendency of a prior suit bars relief. State ex rel. Wahl v. Speer, 223 S.W. 655. (2) A peremptory writ of mandamus will not issue until it is plainly shown that it is within the province and power of respondents named in the writ to obey the mandate. State ex rel. Hemmerla v. Special Road District, 217 S.W. 605. (3) When the alternative writ asks for greater relief than the court can properly grant, as the alternative writ asks in this case, a peremptory writ must be refused. State ex rel. v. Howard County, 41 Mo. 247; State ex rel. Hendricks v. Hopson, 177 Mo. App. 12; State ex rel. v. Police Commrs., 80 Mo. App. 206; State ex rel. v. Norvell, 80 Mo. App. 180. (4) For a proper form for command of writ, see Hartman v. City of Brunswick, 98 Mo. App. 674; Heather v. City of Palmyra, 311 Mo. 40.

DAVIS, C.

On December 1, 1926, to collect a judgment rendered against University City based on a tort, plaintiff filed in the Circuit Court of St. Louis County a petition for an alternative writ of mandamus in aid of execution. The alternative writ of mandamus issued, directed to the city of University City, its mayor, aldermen, collector and treasurer. The court overruled appellants' motion to quash the writ, appellants standing thereon and refusing to plead further. Thereupon a peremptory writ of mandamus issued, to which appellants filed a motion in arrest of judgment and to quash, which the trial court overruled. Upon application appellants were allowed an appeal here.

It develops that Frank Pyle died as the result of injuries received, caused by the negligence of University City. On April 12, 1922, suit was filed in the Circuit Court of St. Louis County against said city by his administrator to recover damages therefor. On February 2, 1924, on a trial of the cause, the jury returned a verdict in favor of plaintiff in the sum of $7500 against said city. On May 5, 1924, the court sustained a motion for a new trial on the ground of erroneous instructions. Plaintiff appealed to the St. Louis Court of Appeals, which court reversed the order sustaining the motion for a new trial and remanded the cause to the trial court with directions to reinstate the verdict and render judgment accordingly. [Pyle v. University City, 279 S.W. 217.] On July 26, 1926, the Circuit Court of St. Louis County, in compliance with the mandate of the appellate court, reinstated the verdict, and entered judgment for the plaintiff in the sum of $7500 against said city, but disallowed interest computed from February 2, 1924, to July 26, 1926, due to the verbiage of the mandate, which neglected to order the judgment reinstated as of the original date. The execution, issued on the judgment entered July 26, 1926, was returned nulla bona by the sheriff.

On August 26, 1926, said city filed its motion to set aside and stay judgment, and to recall execution. On September 25, 1926, the Circuit Court of St. Louis County overruled the motion, and on said date the said city filed a motion for a new trial, which said motion was, on September 25, 1926, submitted and overruled. Thereupon said city filed its affidavit of appeal, deposited a docket fee of ten dollars, and made application for an appeal, which application was denied on October 4, 1926.

On December 1, 1926, plaintiff filed an application for an alternative writ of mandamus to compel defendant, said city, and its proper officers, to levy the tax necessary to pay the aforesaid judgment. On December 11, 1926, the city of University City filed a motion to quash the alternative writ of mandamus, which motion to quash was, on December 11, 1926, overruled. The city declining to plead further, a peremptory writ of mandamus was issued on December 11, 1926, by the Circuit Court of St. Louis County. On December 16, 1926, said defendants filed their motion in arrest of judgment and to quash the peremptory writ of mandamus, which said motion was overruled by the the court on December 20, 1926. On January 7, 1927, said defendants filed their affidavit for appeal, pursuant to which the present appeal in this cause is being prosecuted. Such other facts as are pertinent, if any, will appear in the opinion.

I. The initial question relates to the jurisdiction of this court, and involves the amount in dispute only, Appellate which amount, exclusive of costs, must exceed the Jurisdiction. sum of seventy-five hundred dollars to vest jurisdiction in this court.

The petition for the writ of mandamus in aid of execution was filed December 1, 1926. It sought the aid of the court to constrain the city and its officers to assess and collect taxes to satisfy a judgment recovered against the city for the death of Frank Pyle, due to its negligence. The judgment was rendered July 26, 1926, in the sum of $7500. From its entry it concomitantly drew six per cent interest. While the petition for mandamus was based on the money judgment recovered, it was in reality a separate action. Interest had then become due, so that the judgment, principal and interest, exceeded $7500. The petition for mandamus operated not merely upon the judgment, but on the judgment and interest united. Thus the amount in dispute, when the petition for mandamus was filed, was the united judgment and interest. We rule that the amount in dispute exceeded the sum of $7500, so as to vest jurisdiction in this court. The facts here stated are not analogous to the facts found in Schwyhart v. Barrett, 223 Mo. 497, 122 S.W. 1049. We are not without authority for our position. State ex rel. Fisk v. Police Jury, 34 La. Ann. 95, involved the levying of a tax to pay judgments. The court tersely said: "The amount of taxes to be levied under the judgment appealed from must be sufficient to satisfy said judgments in principal, interests and costs. Now, the interests allowed by said judgments, added to the aggregate capital thereof, make up an amount which far exceeds one thousand dollars, and that amount being the amount in dispute in this controversy, vests this court with jurisdiction." [Dryden v. Wyllis, 51 Iowa, 534, 1 N.W. 703; State v. Boner, 57 W. Va. 81, 49 S.E. 944; Heather v. City of Palmyra, 276 S.W. 872.] We deem it unnecessary to discuss the relativity of the costs to the amount in dispute.

II. The alternative and peremptory writs of mandamus ordered appellants, without further excuse or delay, to proceed to make a levy, or successive levies, sufficient to satisfy Constitutional the $7500 judgment and six per cent interest Inhibitions. thereon from July 26, 1926, and accrued costs of $169.60, as well as the costs of this mandamus proceeding, and to pay same to respondent herein, or his attorneys of record, until said judgment, interest and costs are fully paid.

It is the contention of appellants that the writs exceed the authority of the court and should be quashed. One phase of the inquiry involves the construction of Sections 11 and 12, Article X, of the State Constitution. Section 11 provides: "Taxes for county, city, town and school purposes may be levied on all subjects and objects of taxation; ... For city and town purposes the annual rate on property ... in cities and towns having less than ten thousand and more than one thousand inhabitants, said rate shall not exceed fifty cents on the hundred dollars valuation; ..." Section 12 provides in part, in substance, that no city shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose.

It is evident, we think, that Sections 11 and 12 aforesaid are to be construed together. They comprise integral parts of a system of financiering and are so closely akin as to their subject-matter as to be correlated. Section 11 is a limitation to the tax rate that the municipality is permitted to levy, while Section 12 limits the amount of indebtedness. They are so closely related that the State of Kentucky in its Constitution has seen fit to unite in one section their identical meaning and import. This court, through BARCLAY, J., in Lamar v. City of Lamar, 128 Mo. 188, l.c. 216, 26 S.W. 1025, discussing the sections, said:

"The two sections are component parts of a system of financiering which experience pointed out as furnishing a safer course than had been previously followed. Two great objects were in view, and each of the sections treat of...