Chase v. Morrison

40 Iowa 620

• Court: Supreme Court of Iowa
• Decided: June 16, 1875
• Status: Published

Opinion

Day, J.

xlppellant does not claim that the board of directors of the district township have omitted any duty. It is admitted that for the years 1873 and 1874, they caused to be levied for the school house fund the maximum tax of ten mills, and that in addition thereto, in the year 1873, they levied a special tax of seven mills for the payment of this judgment. The agreed statement of facts shows that the sum realized from this tax has been paid to plaintiff. At the time the order was issued upon which the judgment was rendered, which plaintiff now holds, there were outstanding upon the school house fund of the township in question, orders amounting to the sum of $8,379.91; The order upon which this judgment was entered swelled this sum to $4,729.91.

The claim of plaintiff is simply this, that his order having been merged in a judgment, he is entitled to absorb all the 1. orderofijudg-mení. tax of ten mills levied by the district, to the exclusion °ther holders of warrants, and he contends that any construction which does not give him such priority, would do great injustice to him. It seems to us, however, that the other holders of warrants have rights which should be respected, and that if they should be debarred from collecting anything until plaintiff, whose warrant was issued subsequently to their’s, has been fully paid, . they might, with at least some propriety complain that great injustice had been done them.. Section 1748, of the Code of 1873, which is the same as the law before in force, provides: “ The district treasurer shall keep with each fund a separate account, and shall pay no order which does not specify the fund on which it is drawn and the specific use to which it is applied. If he have not sufficient funds in his hands to pay in full the warrants drawn on the fund specified, he shall make a partial payment thereon, paying as near as may be an equal proportion of each warrant.”

Each of the holders of these warrants, then, was entitled to jpro rata payment, in proportion to the amount of the warrant by him held. But appellant claims that they have lost this right because of a judgment rendered in an action to which they were not a party. It is not apparent to us how they can be prejudiced or affected by a litigation between strangers.

Section 1787 of the Code provides: “'When a judgment has 'been obtained against a school district, the board of directors shall pay off and satisfy the same from the proper fund, by an order upon the treasurer; and the district meeting, at the time for voting a tax for the payment of other liabilities of the district, shall provide for the payment of such order or orders.”

It is claimed that this order does not satisfy the judgment. This we concede. But the order furnishes the judgment creditor the only means of obtaining payment from a fund in the hands of the treasurer. It is further claimed that section 1748 can have no application to an order drawn upon the treasurer in satisfaction of a judgment under section 1787. But, Sec. 1748 is general in its terms, and applies equally to all orders. There is no rule of construction which requires that it shall be limited to a particular kind of orders. There is no principle of justice which requii’es that the holder of an order wdio has succeeded in getting before all the holders of similar orders in obtainining a judgment against a school district, and who has, perhaps, unnecessarily and wantonly subjected it-to costs, shall be preferred to all of them in the collection of his claim out of the general fund raised by the district. In fact, it seems to us to be a most wise and salutary rule to require him to take such fund fro rata with other creditors.

But it may be said that under this construction a party derives no benefit from his judgment. Fie is, however, placed 2.--: jUCl&'IDGiltt! mandamus, in a position that he may levy upon the- property t/»/l of the district, and collect- his debt by execution, if he can find any-property not exempt. And he can, by mandamus, compel the levy of a special tax, for the payment of his judgment, if the district does not levy a tax to the maximum authorized.

. We are clearly of opinion that plaintiff is not entitled to the whole tax collected and in the hands of the treasurer. He is, however, entitled to a fro rata payment of his order.

■ The judgment will be so far. modified as to entitle plaintiff to a mandamus, directing the treasurer to pay plaintiff’s order fro rata with other orders drawn upon the school house fund.

Modified AND affiemed.