State v. Wilcox

• Citation: 21 S.W.2d 930
• Decision Date: 13 November 1929
• Docket Number: No. 4585.,4585.
• Parties: STATE ex rel. EDWARDS v. WILCOX et al.
• Court: Court of Appeal of Missouri (US)

21 S.W.2d 930

STATE ex rel. EDWARDS v. WILCOX et al.

No. 4585.

Springfield Court of Appeals. Missouri.

November 13, 1929.

Rehearing Denied December 11, 1929.

Appeal from Circuit Court, Christian County; Fred Steward, Judge.

Mandamus by the State, on the relation of Reba Edwards, to compel Walter Wilcox and others, Directors of School District No. 73, Christian County, to pay a judgment in favor of relator. From an order granting a peremptory writ, respondents appeal. Affirmed.

G. Purd Hays, of Ozark, for appellants.

Omer E. Brown, of Ozark, and F. W. Barrett, of Springfield, for respondent.

SMITH, J.

This is an appeal from an order granting a peremptory writ of mandamus, ordering the respondents, who were directors of school district No. 73 of Christian county, to pay a certain judgment in favor of relator (hereinafter called plaintiff), out of the teachers' fund; said judgment having resulted from a suit against the district on the breach of a teacher's contract.

The plaintiff alleged that she was a legally qualified public school teacher at the time of instituting a certain cause of action against the respondents (hereinafter called defendants), and that the cause of action that had been filed by her against the defendants was for the purpose of collecting wages due her as teacher for said district, and that under her contract she brought her suit in the circuit court of Christian county, and obtained a judgment in the sum of $560 in her favor and against the defendants, directors of school district No. 73 of Christian county, on the 7th day of September, 1926, and that thereafter the defendants appealed said cause to the Springfield Court of Appeals, and that said cause was in all things affirmed on September 3, 1927 (297 S. W. 1001); that by reason of such, said judgment is now binding and valid against district No. 73, and should in all rights be paid out of the teachers' fund belonging to said district. Plaintiff stated that after the affirming of the judgment, an execution was caused to be issued out of the circuit court of Christian county on the 30th day of September, 1927, and that on the 23d day of January, 1928, the return day of the said execution, the sheriff of that county made his return of "nulla bona," and thereupon the plaintiff filed with the circuit court of Christian county a petition asking for a writ of mandamus seeking to compel the defendants to pay said judgment or show cause why it should not be paid.

The plaintiff further alleged that there was on that date money on hand to the credit of the teachers' fund for said district to pay part of said judgment, and that other funds would be turned into the treasurer from time to time, and that it was the duty of the directors of the said district to draw, or cause to be drawn through the clerk, warrants for the payment of said judgment as the money is paid into the treasurer's office for district No. 73.

Plaintiff alleged that the board of directors had failed and refused to draw warrants on the teachers' fund to pay any part of said judgment and further alleged that there had been levied the sum of 65 cents on the $100 valuation in said district, and the plaintiff prayed that if provision be not made for the payment of the said judgment by the directors of said district, the court cause a peremptory writ of mandamus to be issued against the said directors causing them to issue a warrant on the teachers' funds to pay this judgment, and if not enough money be found in the treasury to pay the same that the court order twenty cents of the $100 valuation to be set aside and be paid into the treasury to the credit of the judgment in this cause, and that upon the accumulation of enough funds to pay said judgment, together with interest and costs of this suit, the directors of said district, Walter Wilcox, Lola Hawkins, and Will Harp, and their successors in office, pay, or cause to be paid, said judgment, or such part as was then available, and if not enough be there to pay all of said judgment, that the court, through its writ of mandamus, cause said directors to set aside 20 cents on the $100 valuation of said district to the teachers' fund and issue warrants thereon as the funds accumulate, until said judgment be paid in full.

The petition for mandamus was filed in the circuit court of Christian county on January 25, 1928, and an alternative writ of mandamus was issued out of the court on the same day, returnable on the 14th day of February, 1928, during the regular January term. The abstract of the record shows that the alternative writ of mandamus was executed by the sheriff on the 26th day of January, 1928, by the delivery of a certified copy of same to the defendants, Will Harp, Walter Wilcox, and Lola Hawkins, directors of school district No. 73.

On February 14, 1928, a motion to quash the alternative writ of mandamus was filed by the defendants Walter Wilcox and Lola Hawkins, directors of said school district, which motion is as follows (caption omitted):

"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 upon the defendants to do the acts commanded.

"4. It does not appear from said writ that defendants have failed to do any duty enjoined upon them by law.

"5. It does not appear that defendants are the directors of any school district duly incorporated by law.

"6. That Mrs. Herbert Hawkins cannot be sued in the name of Mrs. Herbert Hawkins but must be sued in her real name.

                  "[Signed]   Walter Wilcox
                            "Mrs. Lola Hawkins
                                "By G. Purd Hays
                          "Attorney for Said Defendants."
                

The record further shows that on February 14, 1928, the plaintiff was permitted to file an amended petition and the alternative writ was also amended, and on the same day the respondents were given until within 30 days of the next term of court to make return to the alternative writ, and the cause was continued until the next term...