Stevens v. Miller

• Decision Date: 01 November 1895
• Docket Number: 71
• Citation: 43 P. 439,3 Kan.App. 192
• Parties: E. B. STEVENS, as Mayor of the City of Parsons, et al., v. WILLIAM MILLER et al
• Court: Kansas Court of Appeals

43 P. 439

3 Kan.App. 192

E. B. STEVENS, as Mayor of the City of Parsons, et al., v. WILLIAM MILLER et al

No. 71

Court of Appeals of Kansas, Southern Department, Eastern Division

November 1, 1895

Opinion Filed January 11, 1896.

MEMORANDUM.--Error from Labette district court; J. D. MCCUE judge. Action by William Miller, and John H. Lyles, as guardian of Rose E. Miller, against the mayor and council of the city of Parsons for a writ of mandamus. Writ granted. Defendants bring the case to this court. Affirmed. The opinion herein, filed January 11, 1896, states the material facts.

Judgment affirmed.

W. D Atkinson, for plaintiffs in error.

M. Byrne, for defendants in error.

COLE J. All the Judges concurring.

OPINION

COLE, J.:

On October 19, 1888, Ida L. Miller recovered a judgment against the city of Parsons for injuries received upon a defective sidewalk in said city. On November 19, 1888, said Ida L. Miller died intestate, leaving as her heirs at law her husband and one child. On March 4, 1889, the action was revived in the names of William Miller, husband of Ida L. Miller, deceased, and John H. Lyles, guardian of said minor child. Said revivor was had upon due notice to the defendant and appearance by its attorney, and without objection upon the part of the defendant. Thereupon the city of Parsons made a case for the supreme court, which was, on March 29, 1890, dismissed by said court. On May 6, 1890, a petition was presented to the district court of Labette county, for an alternative writ of mandamus to compel the levy of a tax for the payment of said judgment. The alternative writ was granted on said date, and on the 22d day of May the city of Parsons appeared in the district court and filed a motion to quash said writ for reasons contained in the motion; and thereupon, on the 25th day of May, the district court, upon motion of the plaintiffs below, allowed the said writ to be amended, the defendant being present by its attorney and having notice of said amendment. The defendant then filed its answer and return, which consisted of a general denial and an allegation that the revivor proceedings were had without notice to the defendant City of Parsons; that the same were void; that plaintiffs had no interest in the said judgment, and that the said city did not owe and could not safely pay any part of the same to them. Upon the hearing of said cause a peremptory writ was allowed, and from the order allowing the same the city of Parsons brings the case here for review.

The first ruling complained of is the refusal of the trial court to quash the alternative writ of mandamus for the reason that no poverty affidavit, bond for costs or security of any kind for payment of costs had been given in said action. The ruling of the trial court was correct. Mandamus to a municipal corporation to levy a tax for the purpose of paying a judgment rendered against such corporation is in the nature of an execution to enforce such judgment, and, where the requirements of the statute have been met in the main action, no separate bond for costs or poverty affidavit is necessary in the mandamus proceedings which are a part thereof. (Dill. Mun. Corp., 4th ed., § 861.)

The next assignment of error is the ruling of the court permitting the plaintiffs below to amend said alternative writ, and proceed upon the same without service of the amended writ upon the plaintiffs in error. Paragraph 4810, General Statutes of 1889, provides that the pleadings in a mandamus proceeding are to be considered and are to be amended in the same manner as pleadings in a civil action. The amendment permitted, then, would be the same as an amendment to a petition in an original action, which is clearly within the discretion of the court, and, hav been made in this case with notice to the defendants below, there was no abuse of such discretion. The record does not disclose that any further time was asked by the city to answer the amended writ. Had there been, the court would undoubtedly have granted such request.

The next ruling complained of is the overruling of the objection to the introduction of evidence under the amended writ, for the reason that the writ recited that the judgment obtained against the city had been revived in the names of the heirs at law and not the personal representative. The record discloses that on the 7th day of May, which was the day following the issuing of the alternative writ, proceedings had been taken for the appointment of an administrator of the estate of Ida L. Miller, deceased. This, however, was some time after the revivor had been had in the names of the heirs at law upon notice to the defendant below, and at a time when the city was represented at the hearing, and offered no objection to the revivor in the manner requested. Under such circumstances as these, we are of the opinion that the city was in no position to question either the validity of the judgment rendered or the order of revivor. As to the former, it had had its day in court, and the judgment had become final by the decision of the supreme court, and as to the latter, it had been present upon notice, and permitted, without objection, the said order of revivor, and those proceedings were res judicata in this hearing, and could not be inquired into.

Counsel for plaintiffs in error urges that evidence should not have been permitted to be introduced under said writ, for the reason that said writ nowhere showed any legal obligation on the part of the plaintiffs in error either to appropriate money or levy a tax; that the writ does not recite that execution had been issued and returned unsatisfied, or that there was money in the treasury with which to pay the same, needing only an appropriation therefor, or that a levy of a tax within the limits provided by law would raise money that could be applied toward the payment of this judgment. The writ recites the rendition of the judgment and its revivor in the names of the plaintiffs below, a request on the part of said plaintiffs to the mayor and council of the city of Parsons to pass an ordinance for the appropriation of money for the payment of said judgment, and the refusal upon the part of said mayor and council to comply with such request, and asks that the mayor and council be commanded to meet in their official capacity to levy a tax upon the taxable property of the city sufficient to pay said judgment and costs, and to cause the same to be collected and paid in satisfaction of said judgment, according to the direction of the statute in such case made and provided. We are of the opinion that the allegations of the writ were sufficient. They stated the rendition of a judgment in due form against said city, which judgment had become final, and a demand upon the proper authorities that they perform their duties as public officials in order that this indebtedness of the city might be paid. It appears to us that, if the objections now raised to the writ were good in law, and were sufficient reasons for noncompliance with the commands of the writ, they should have been set up in the answer of the city as an excuse and a defense. The city does not allege in its answer that the mayor and the council have no...