Wyker v. Francis

• Decision Date: 29 November 1898
• Parties: WYKER, City Treasurer, v. FRANCIS.
• Court: Alabama Supreme Court

24 So. 895

120 Ala. 509

WYKER, City Treasurer, v. FRANCIS.

Supreme Court of Alabama

November 29, 1898

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Application for mandamus by W. R. Francis against J. D. Wyker, treasurer of the city of Decatur. Judgment for petitioner, and respondent appeals. Affirmed.

The appellee, W. R. Francis, filed his application, addressed to the judge of the Eighth judicial circuit, asking for the issuance of a writ of mandamus to the appellant, J. D. Wyker as treasurer of the city of Decatur, commanding him to pay said claims against the city, which the petitioner owned, and had presented for payment. The substance of the facts averred in the petition is sufficiently set forth in the opinion. The respondent demurred to the petition upon the grounds (1) that the petitioner was not entitled to the writ of mandamus because the funds alleged to be in the respondent's hands as treasurer were not appropriated to the payment of the claims of the petitioner; (2) that the petitioner's debt or demand was a simple debt against the city, without a lien or force of a judgment; (3) that the petitioner has an adequate remedy by an ordinary action at law for the recovery of his claim; (4) that the facts averred in the petition show no reason why suit has not been brought against the municipality, and the claim of the petitioner reduced to judgment. This demurrer was overruled, and the respondent duly excepted. The respondent filed an answer, in which he set up the following facts: "(1) That the allegations and averments in said petition contained are believed by this respondent to be true as therein stated, except as herein stated to be different. (2) That the money and funds of the city of Decatur that was in the hands of this respondent, and is now in his hands, was money or funds belonging to the general funds of the city. (3) That the warrants or vouchers held by the relator, the payment of which was demanded as set forth in his petition, were payable out of the general funds of the city of Decatur. (4) That this respondent did not have in his hands at the time of the demand made by the relator for the payment of his said vouchers, nor has he since had as such treasurer, any special funds set apart or appropriated for the payment of the vouchers held by said relator. (5) That this respondent had not at the time of the demand made, nor has he since had, in his hands, any special fund out of which to pay said vouchers. (6) The city of Decatur, of which this respondent is treasurer as aforesaid owes to various and divers persons sums of money aggregating largely more than the amount of money in the hands of this respondent, and more than is likely to come into his hands; and to permit the relator in this case to take from the hands of this respondent, as said treasurer, said sum of money, would be allowing to him an advantage over other creditors of the said city, whose claims are equally as meritorious and entitled to payment as are the demands of the petitioner. (7) To grant petitioner's petition for mandamus would be an invitation to other creditors of said city to resort to like proceedings against this respondent, and would wholly cripple and impair the ability of the said city of Decatur to run its municipal government, and would, in effect, destroy the said city government, for want of funds with which to prosecute and carry on its governmental functions. (8) The funds in the hands of this respondent, together with the estimated receipts for the present fiscal year, beginning July 1, 1897, and ending June 30, 1898, are not more than sufficient to pay the running and current expenses of the said city of Decatur during said fiscal year. (9) That there have been filed and registered with this respondent warrants and vouchers aggregating $630.71, which said warrants and vouchers were registered prior to the vouchers of the relator in this case. Said warrants and vouchers were registered with this respondent, as such treasurer, under and by authority of a resolution of the mayor and council of the city of Decatur adopted on the 9th day of June, 1896, which said vouchers so registered prior to those of the petitioner are entitled to be paid before the demands of the said petitioner." To this answer the petitioner demurred upon the following grounds: (1) To the second and third paragraphs of said answer, because the same shows no reason why the warrants held by petition should not be paid out of the general funds of the city of Decatur in the hands of the treasurer of said city. (2) To the fourth and fifth paragraphs of said petition, because it is not shown or averred that the warrants of the city of Decatur belonging to petitioner are payable out of a special fund. (3) To the sixth, seventh, and eighth paragraphs of said answer, because the averments contained therein state conclusions and arguments of the pleader, and state no facts that would be sufficient reason or excuse why the warrants of said city of Decatur in the hands of and belonging to petitioner should not be paid by the said treasurer. (4) To the ninth paragraph of said answer, because the same fails to show to whom said vouchers or warrants mentioned therein were issued, to whom payable, by whom registered, nor who are the owners thereof, and fails to show that any demand by the holders and owners of said warrants was made for the payment of the same before demand made by petitioner, or before the filing of his petition, or before answer made to the petition filed in this cause, and because it does not appear that that resolution of the mayor and council of the city of Decatur, adopted June 9, 1896, required the treasurer of said city to pay off warrants in the order of their registration. (5) Because the defenses set up in said answer are inconsistent and repugnant, in this: the said answer shows by its averments that the warrants of petitioner are payable out of the general funds of the said city, and that the moneys held by the treasurer at the time of the demand and filing of said petition, and at the time of his answer, belonged to the general fund of the city, and sets up as a defense that be cannot pay off said warrants because no special fund had been set apart for that purpose, and that he cannot pay off said warrants because warrants and vouchers aggregating $630.71 were registered prior to those of petitioner, and are entitled to be paid prior to the demands of petitioner, and that he cannot pay off said warrants because it would give petitioner an advantage of other creditors of the city of Decatur, and that he cannot pay off said warrants because the estimated receipts for the fiscal year 1897-98 are not more than sufficient to pay the running and current expenses of the said city of Decatur during said fiscal year, and that he cannot pay off said warrants because they are payable out of the general funds of the city of Decatur. This demurrer was overruled. The grounds of demurrer numbered 1, 2, 3, and 4 were sustained, and the ground of demurrer numbered 5 was overruled. The other material facts of the case are sufficiently stated in the opinion. Upon issue joined, the court granted the prayer of the petitioner, and ordered a peremptory writ of mandamus to be issued as prayed for. To the rendition of this judgment the respondent duly excepted. The respondent appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. In this court the appellee moved the court to dismiss the appeal upon the following grounds: "(1) The appeal was not taken within thirty days after the rendition of the judgment in the circuit court. (2) After the thirty days allowed appellant in which to take an appeal had expired, and before my appeal bond was presented to or filed with the clerk of the circuit court of Morgan county, a peremptory writ of mandamus was issued and served upon appellant." The cause was submitted upon this motion to dismiss the appeal, and upon the merits.

D. W. Speake, for appellant.

Harris & Eyster and W. R. Francis, for appellee.

DOWDELL J.

Motion is made to dismiss the appeal in this case on two grounds First, because, as it is contended, the appeal was not taken within 30 days after the rendition of judgment in the circuit court; second, because, "after the thirty days allowed appellant in which to take an appeal had expired, and before any appeal bond was presented to or filed with the clerk of the circuit court of Morgan county, a peremptory writ of mandamus was issued and served upon appellant." Considering the two grounds in the inverse order as stated above, it is difficult to understand how the issuance of the peremptory writ could deprive the appellant of his right of appeal. In the absence of an order of the court suspending the execution of the judgment for a peremptory writ, or of the filing by the appellant (defendant in the court below) of a supersedeas bond, the peremptory writ ordered in the judgment might have been issued within 30 days. The contention, therefore, that the issuance of the peremptory writ was an execution of the judgment, having issued before the appeal bond was "presented to or filed with the clerk of the circuit court," is without merit, on motion to dismiss an appeal. Except in such cases as a different time is prescribed by statute, appeals from final judgments and decrees of circuit and chancery courts may be taken at any time within a year from the rendition of the judgment or decree; and we do not think it could be seriously urged that the execution of the judgment or decree within that time would deprive the party complaining of his right of appeal. Was the appeal taken within 30 days? The judgment appealed from was rendered on...