United States ex rel. Portsmouth Sav. Bank v. Board of Auditors of the Town of Ottawa
| Decision Date | 26 July 1886 |
| Citation | 28 F. 407 |
| Parties | UNITED STATES ex rel. PORTSMOUTH SAV. BANK v. BOARD OF AUDITORS OF THE TOWN OF OTTAWA. |
| Court | U.S. District Court — Northern District of Illinois |
G. S Eldredge, for relator.
H. T Gilbert, for respondent.
This is a petition for a mandamus to compel the board of town auditors of the town of Ottawa to audit and certify, as a valid debt against the town, a judgment rendered against the town in this court in favor of the relator in 1874.
Respondents have answered, setting up as defenses or reasons why a writ of mandamus should not issue: (1) That the judgment is barred by the statute of limitations of the state of Illinois. (2) That the judgment was rendered more than seven years before the filing of this petition, and no execution has ever issued thereon; and, as no execution can now issue for its collection, therefore it cannot be collected by resorting to a writ of mandamus. (3) That the judgment in question was rendered for interest upon certain bonds issued by the town to aid in the construction of a railroad; and that both the supreme court of the state of Illinois and the supreme court of the United States have decided that such bonds were void for want of power in the town to issue the same.
To this answer a general demurrer is filed by the relator, whereby it is insisted that neither of the defenses set up show a sufficient reason why the writ should be denied.
I do not think the defense of the statute of limitations, as urged by the first point, can avail the respondent. The second section of the act of April 11, 1873, amendatory of chapter 83, Rev. St. Ill., provides that judgments in any court of record in this state may be revived by scire facias, or an action of debt may be brought thereon, within 20 years next after the date of such judgment, and not after. This section clearly takes judgments in the courts of record out of the classes of indebtedness covered by sections 15 and 16 of chapter 83, which relate specifically to indebtedness evidenced by oral and written contracts, and preserves the right of action on such judgments for the term of 20 years.
As to the second point, that, as an execution cannot issue on the judgment, therefore a writ of mandamus cannot be resorted to for its collection, on its first statement the argument seemed to me to have much force; but it has been repeatedly held by the supreme court of this state that a judgment against a municipal corporation cannot be collected by execution, and under the township organization laws of this state the townships are quasi municipal corporations for governmental purposes, and the property held by them is held for a public purpose, which would seem to bring it within the same rule. Article 9, Sec. 12, Const. Ill.; City of Chicago v. Hasley, 25 Ill. 595; Town of Odell v. Schroeder, 58 Ill. 353; City of Paris v Cracraft, 85 Ill. 294; Norton v. Peck, 3 Wis. 714; Rumford v. Wood, 13 Mass. 193; Drake v. Phillips, 40 Ill. 388.
It is true that the statute of this state provides that, when an execution is issued within one year after the rendition of a judgment, it shall be a lien upon the raw estate of the defendant for a period of seven years from the time the same was rendered, and that unless execution is issued within one year the lien only continues one year from the rendition of the judgment. Section 1, c. 77, Rev. St. Ill. And it is also provided that no execution shall issue the same was rendered except upon the revival of the same by scire facias. Section 6, c. 77, Rev. St. Ill. I do not, however, see that these provisions as to the lien of a judgment upon real estate, and the time within which an execution may issue, control or affect the question raised in this case. The statutes of the state provide that judgments against towns are a town charge, and when collected shall be paid to the person or persons to whom the same shall have been adjudged. Haines, Tps. (Ed. 1883,) 66. The town board of auditors have no discretion to refuse to audit a valid judgment against their town, and have no power to pass in review upon a judgment...
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