Laird v. Mayor of De Soto

25 F. 76, 1885 U.S. App. LEXIS 2208

Opinion

Brewer, J.,

(orally.) In this ease a judgment was rendered against the defendant, an incorporated city, upon certain municipal obligations. An alternative writ was issued without a prior execution. The statutes of Missouri provide that if an execution be issued against an incorporated city and be returned unsatisfied, then a writ of mandamus may go. 1 Rev. St. § 2415. I understand that the practice in this court has conformed to the provisions of this statute. It should so conform. No right of the judgment creditor is lost; all that results is a slight delay. And the acts of congress indicate the propriety, if not the duty, of conformity. Desty, Fed. Proc. § 914; U. S. v. Keokuk, 6 Wall. 514; Moran v. City of Elizabeth, 9 Fed. Rep. 72. Hence the writ was prematurely issued, and the motion to quash will be sustained.