Carter County v. Schmalstig

Sixth Circuit

Carter County v. Schmalstig

127 F. 126, 62 C.C.A. 78, 1904 U.S. App. LEXIS 3791

CourtCourt of Appeals for the Sixth Circuit

DecidedJanuary 18, 1904

DocketNo. 1,213

StatusPublished

Cited by3 cases

This text of 127 F. 126 (Carter County v. Schmalstig) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carter County v. Schmalstig, 127 F. 126, 62 C.C.A. 78, 1904 U.S. App. LEXIS 3791 (6th Cir. 1904).

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Opinion

LURTON, Circuit Judge.

This is an appeal from a judgment awarding a peremptory writ of mandamus. The writ commands the defendants, the judge and justices composing the county court of Carter county, to levy an additional tax to one theretofore levied for the same purpose, but which had proved insufficient to pay and satisfy a judgment in favor of David Sinton against the county of Carter for $47,435.60 and costs, rendered December 7, 1889.

Mandamus is a legal, and not an equitable, proceeding, and a mandamus after a judgment to compel the levy of a tax is in the nature of an execution to enforce satisfaction. Riggs v. Johnson County, 6 Wall. 166, 18 L. Ed. 768; Heine v. The Levee Commissioners, 19 Wall. 655, 660, 22 L. Ed. 223.

A proceeding to review a judgment awarding such a writ must be by a writ of error. This point was expressly decided by this court in Muhlenberg County v. Dyer et al., 65 Fed. 634, 13 C. C. A. 64, upon the authority of Ward v. Gregory, 7 Pet. 633, 8 L. Ed. 810; Insurance Co. v. Wheelright, 7 Wheat. 534, 5 L. Ed. 516; and United States v. Addison, 22 How. 174, 185, 16 L. Ed. 304. The time having elapsed within which a writ of error may issue, we are unable to now correct the error in praying an appeal when a writ of error should have been allowed.

We have, therefore, no jurisdiction to review the judgment complained of, and the appeal is dismissed.

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LURTON, Circuit Judge.

This is an appeal from a judgment awarding a peremptory writ of mandamus. The writ commands the defendants, the judge and justices composing the county court of Carter county, to levy an additional tax to one theretofore levied for the same purpose, but which had proved insufficient to pay and satisfy a judgment in favor of David Sinton against the county of Carter for $47,435.60 and costs, rendered December 7, 1889.

Mandamus is a legal, and not an equitable, proceeding, and a mandamus after a judgment to compel the levy of a tax is in the nature of an execution to enforce satisfaction. Riggs v. Johnson County, 6 Wall. 166, 18 L. Ed. 768; Heine v. The Levee Commissioners, 19 Wall. 655, 660, 22 L. Ed. 223.

A proceeding to review a judgment awarding such a writ must be by a writ of error. This point was expressly decided by this court in Muhlenberg County v. Dyer et al., 65 Fed. 634, 13 C. C. A. 64, upon the authority of Ward v. Gregory, 7 Pet. 633, 8 L. Ed. 810; Insurance Co. v. Wheelright, 7 Wheat. 534, 5 L. Ed. 516; and United States v. Addison, 22 How. 174, 185, 16 L. Ed. 304. The time having elapsed within which a writ of error may issue, we are unable to now correct the error in praying an appeal when a writ of error should have been allowed.

We have, therefore, no jurisdiction to review the judgment complained of, and the appeal is dismissed.

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Bluebook (online)

127 F. 126, 62 C.C.A. 78, 1904 U.S. App. LEXIS 3791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-county-v-schmalstig-ca6-1904.

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