State ex rel. Black v. Wilson

139 S.W. 705, 158 Mo. App. 105, 1911 Mo. App. LEXIS 454

• Court: Missouri Court of Appeals
• Decided: August 12, 1911
• Status: Published

Opinion

NISON, P. J.

(after stating the facts as above).— This is an action to enforce a right that the relators claim by virtue of section 2218, Revised Statutes 1909, concerning executions and what notices shall be given by the sheriff in cases of sales of real estate, which is, in part, as follows: “When real estate shall be taken in execution by an officer, it shall be his duty to expose the same to sale at the courthouse door, on some day during the term of the circuit court of the county where the same is situated, having previously given twenty days ’ notice of the time and place of sale, and what real estate is to be sold and where situated, by advertisement in some newspaper printed in the county which may be designated by the plaintiff or his •attorney of record, if there be one regularly published, weekly or daily, and if not, by at least six printed or written handbills, signed by such sheriff, and put up in public places in different parts o'f the county; . . .”

The evidence shows that on the éth day of May, 1911, the relators herein obtained a judgment in the circuit court of Phelps county against John R. Jones and others in the sum of $689.18 and $25 additional as attorney’s fee, and that a vendor’s lien was declared on the real estate described in said judgment. That on the 26th day of June, 1911, relator’s attorney of record, B. H. Rucker, ordered a special execution on said judgment and the same was issued by the clerk of the circuit court of Phelps county, and was by him delivered to the respondent herein who was at that time and is now sheriff of said county. That respondent delivered the notice of sale for publication to the Rolla Times. The controlling facts as to his action in this matter are brought out in his own testimony as follows:

“Q. I will ask you, Mr. Wilson, whether as sheriff of Phelps county, Missouri, on or about the 26th day of June, 1911, you received from W. R. Ellis, clerk of the circuit court of Phelps county, a certain notice of sale or special execution in a case in which L. A. Black and M. E. Gilmore were plaintiffs and John R. Jones, H. C. Berger, A. B. Holt, and Otto Schoot were defendants? A. I did. Q. What did you do with these notices and orders? A. I turned them over to the editor of the Rolla Times for publication. Q. Who is the editor? A. J. N. Lavender. Q. How long after you received these papers from the clerk of the circuit court was it until you turned them over to the editor of the Times? A. I don’t remember the exact number of days, but two or three days, I think; I can’t remember exactly. Q. Did you have any agreement or understanding with Mr. Lavender at the time you turned it over to him? A. I did not. I gave it to him and told him to publish it in the Rolla Times. Q. I will ask you whether prior to the time you. gave this notice to Mr. Lavender for publication, Mr. B. H. Rucker, or the relators named in this case, or any one for them, had designated any newspaper in which you should publish this notice? A. They did not. Q. Mr. Wilson, I will ask you if after you delivered this paper to Mr. Lavender for publication you had any talk with Mr. Rucker as to publishing it ? A. Yes, sir, I did'; in front of my store; I don’t remember the day. Q. Was this after you delivered this notice of sale to Mr. Lavender? A. Quite a while after, but I don’t remember the number of days; it must have been a week after that. Q. ■ Was that after you received notice of an application for a-writ of mandamus or before that you had this talk with Mr. Rucker? A. It was before this notice was served that I had the talk with Mr. Rucker.” Cross-examination: <£Q. Did you have a talk or have any conversation with Mr. Ellis, the circuit clerk, at the time he delivered •this special execution to you? A. I had a talk with him at that time but don’t remember just what it w*as; don’t remember whether it was about this special execution; we had a talk along this line but don’t remember that it referred particularly to this execution. Q. What conversation did you have about the execution he delivered to you at that time? A. He said something about it that he believed I was to take these to the Herald. We may have talked about these things and I think I said I don’t believe any one has a right to tell me where I must take these things. Q. Wgre there any notes or notations on this special execution? ■A. On the bottom of this one it said ‘Herald.’ Q. • What did you understand by that notation? A. There wasn’t anything enough to understand what that-meant. Q. What did you- understand by it? A. I couldn’t say that I understood anything about it. The word ‘Herald’ was there but did not have any writing to indicate what it meant. Q. Didn’t you' have a conversation with Mr. Ellis, the circuit clerk,; at the time you got this special execution with that notation on it as to where this should be published? A. He said that it was understood that it was -to go to the Herald hut he didn’t say who wanted it to go to the Herald or anything of that kind. Q. Did you have any talk with Mr. Rucker, the. attorney of record in this case, as to where .this notice should he published? A. I had a .talk with him a day or so after I delivered it to Mr. Lavender. Q. Whereabouts? A. He came down to the store, in front of the store, and asked why I didn’t give that notice to the Herald. I told him I didn’t consider that I had to give it to any paper, I could give it where I pleased and that I had taken it and given it to the Times. He insisted that he had a right to have it taken to the Herald and that he wanted it there and that he wouldn’t pay any costs to the Times. I said that I had given it to the Times and the only way they would get it away was' to take it away from them and that I considered it my right to take it where I pleased. Q. Mr. Wilson, are you a stockholder in the Rolla Times? A. I am. Q. How much stock have you got in it? A. Twenty-one shares. ... In my conversation with Mr. Rucker, I told him that the editor of the Herald was no friend of mine. Q. And wasn’t that the reason you didn’t deliver the notice of sale to him? A. The reason I said was that I considered it my right to take them where I pleased and I was going to take them there.”

J. N. Lavender, editor and business manager of the Rolla Times was sworn and testified, in part as follows: ‘ ‘ That the Rolla Times was and is a weekly newspaper published in Rolla, Phelps county, Missouri. Q. I will ask you, Mr. Lavender, if you received a notice of sale and order for publication in your paper from Mr. Wilson under the style of L. A. Black and M. E. Gilmore v. John R. Jones and others? A. I did. Q. When did you receive that notice ? A. Somewheres along about the first of July, I don’t remember the exact date. Q. Who did you get this notice from? A . Mr. Wilson. Q. What did he deliver it to you for? A. For publication. Q. State whether or not you are publishing that notice in your newspaper now? A. I am. Q. Do you remember when you first inserted that notice in your paper? A. July 27,1911.” Cross-examination: “Q. At the time you published this in your paper is it not a fact that you had notice that an alternative writ of mandamus had been issued against its publication? A. I knew that a notice of that kind had been served on the sheriff, but I had no notice not to continue the publication. Q. Is it not a fact that yon had an article in your paper' stating that the alternative writ of mandamus had been issued against the sheriff prior to the publication of this notice in your paper? A. I think they were both in the same week.”

The statute, in a case like the present, gave the relators or their attorney the authority to designate the newspaper in which the notice of sale should be published, and when such designation was properly made, it became the clear statutory duty of the respondent as sheriff to publish the notice in the newspaper so designated, and it was also clearly the official duty of the respondent to give the relators or their attorney a reasonable opportunity to exercise their statutory privilege of designating the newspaper in which they desired the publication of the notice made, and, if in the meantime the respondent wrongfully gave the notice of sale for publication to some other newspaper, it was no less his duty to give such notice or another notice of sale for publication to the newspaper which the relators or their attorney had selected.

Under the evidence given by the respondent himself, we think it was substantially shown that he had sufficient notice as a matter of law that the relators desired the notice of sale published in the Rolla Herald and also that relator’s attorney made a sufficient demand upon him that it. should be published in such newspaper. “The law never demands a vain thing, and when the conduct and action of the officer is equivalent to a refusal to perform the duty resired, it is not necessary to go through the useless formality of demanding its .performance. Anything showing that the defendant does not intend to perform the duty is sufficient to warrant the issue of a mandamus. ’ ’ [Merrill, Mand., sec. 225; Coffee v. Ragsdale, 37 S. E. l. c. 970.] The evidence unquestionably tends to show, from the statements of respondent himself, that under his conception of his official duty he was not required to give the notice of sale for publication to any newspaper designated by the plaintiffs or their attorney of record but that he could exercise his own discretion and give it to any newspaper he saw fit.

But a more fundamental question confronts us, going to the very root of the relator’s right to maintain this action; that is, whether their petition for an alternative writ shows such a special interest in the matters in litigation herein as to entitle them to the remedy of mandamus.

The relators by their petition base their right to institute the present proceedings upon the fact that they have a judgment declaring a vendor’s lien on certain real estate and that a special execution has been issued thereon; so that it appears on the very face of the application that a private right only is involved in this proceeding. In such case, the law requires a different showing as to relator’s interest than where a public right is involved when such right is sought to be enforced by a private citizen. Where a public duty is sought to be enforced in which the public generally is interested by private citizens on behalf of the public as well as on their own, they may move for a writ of mandamus and are not required to plead or prove any special or particular interest in the result of the performance of the general duty because the people are regarded as the real, moving party. [State ex rel. Rutlendge v. School Board, 131 Mo. l. c. 514, 33 S. W. 3; People ex rel. Van Dyke v. Railroad, 42 Fed. l. c. 641.] Bnt a different rule applies where a private citizen seeks to enforce the performance of an official duty to protect a private right. The authorities hold that mandamus is an appropriate remedy to compel a public officer to perform a plain ministerial duty imposed by statute and involving no discretion. Generally, however, in such cases, the rule is that a writ of mandamus, being an extraordinary remedy, must be denied where the party applying for it has an adequate remedy in an action for damages. This rule as to another adequate remedy, however, is subject to the exception that in cases of corporations and ministerial officers they may he compelled to exercise their functions according to law by mandamus, although the party may have a remedy upon the bond of the ministerial officer. [State ex rel. Craig v. Dougherty, 45 Mo. 294, 299.] But in cases where private rights are sought to be enforced, it must be made to appear by the petition or alternative writ that the petitioner has been injuriously affected by respondent’s default or breach of duty, or that he will be injuriously affected if that duty is not performed. [26 Cyc. 443.] This rule has been stated in the case of People ex rel. Larkin v. Palmer, 59 N. Y. Supp. l. c. 64, as follows: “Courts are instituted to administer justice, and to grant relief against grievances, and not to sit in judgment upon academic questions at the suit of persons who do not come into court alleging a cause of action. A writ of the character asked for here (mandamus) can only issue when a clear legal right to it is made to appear.” The rule has been announced by many authorities that a peremptory writ of mandamus will never be granted to a private party unless it shall be made to affirmatively appear that he will otherwise he deprived of something of substantial value to him. [North v. Board of Trustees, 27 N. E. l. c. 57.] Mandamus itself has been defined as a writ commanding the performance of - some act or duty therein specified in the performance of which the applicant for the writ is specially interested, or by the nonperformance of which he is aggrieved or injured. [Louisville Home Tel. Co. v. City of Louisville, 113 S. W. 855.] The remedy by mandamus, where private parties apply to enforce a private right, is restricted to cases where the relator is deprived of some pecuniary right. [19 Am. and Eng. Ency. Law, 884.]

The question presented here is whether the rela-tors by their pleadings have qualified themselves under these principles of law to be entitled to a peremptory writ of mandamus to compel the sheriff 'to publish the notice of sale in the Rolla Plerald. The relief sought in this proceeding is unquestionably merely private as distinguished from public, and, under the authorities cited, the relators, in order to be entitled to the remedy sought, must show a direct, special and substantial interest in themselves in the subject-matter • of the proceeding. How do the relators in their petition or by the alternative writ meet these requirements? From their pleadings, the only interest shown by the relators in the publication of the no • tice of sale is to enable them to realize at the execution sale of the real estate the amount of their judgment, interest, and costs, or as near such amount as practicable. There is no showing in relator’s petition that the Rolla Times is not a weekly newspaper having an equal or greater circulation than the Rolla Herald, or that the publication of the notice of sale in the Rolla Times would not as well notify persons who might be interested in purchasing the property at the execution sale. There is no showing that the amount that would be realized from a sale of the land under relators’ special execution would be any less if the notice of such sale wére published in the Rolla Times. rather than in the Rolla Herald. Hence there is no showing that relators have been or will be in any way injuriously affected in a pecuniary way by the respondent’s breach of duty by reason of the advertisement of the notice of sale being placed in the Rolla Times rather than in the Rolla Herald. It does not follow because the relators or their attorney of record are allowed to designate the newspaper in which the notice of sale shall be published under the execution issued on their judgment, that they, in the absence of any statute to that effect, have therefore the right to enforce the discharge of that duty by mandamus. Where a statute, having created a duty, has given no remedy for its breach, recourse may be had, to the common law for the remedy; and in the present case the remedy by mandamus would be available to any person who could show that he would be pecuniarily injured by the default of the sheriff to perform his official duty in not publishing the notice of sale in the newspaper designated as provided by said section 2218, Revised Statutes 1909. When the relators or their attorney had properly designated the' Rolla Herald as the newspaper in which they desired the publication of the notice of sale to be made, then the proprietors of that newspaper had a direct and special interest in having the publication of such sale notice ^appear in their newspaper and to receive the compensation and fees which the statute allows for such advertisement. [Louisville Home Tel Co. v. City of Louisville, 113 S. W. 855.] And, in such case, if the Rolla Herald had made a proper demand for such publication and the respondent had refused, such refusal would have been a refusal to perform a ministerial act which the statute requires him to perform and the special interest of that newspaper in the matter would have sufficiently appeared. [Braddy v. Whiteley, 39 S. E. 317; Coffee v. Ragsdale, 37 S. E. 968; Register Newspaper Co. v. Yeiser, 80 S. W. 478.] The controlling facts of the present case hear such a close analogy to the facts in the above cited cases as to be governed by the legal principles therein announced.

Other questions of great interest are presented, and urged with ability by learned counsel in this case, but the view we have taken of the case does not require the widening of the scope of this discussion in order to reach a decision. The relators have failed to state in their petition and in the alternative writ of mandamus facts showing any direct and special pecuniary interest in the subject-matter of the controversy and their application for a peremptory writ of mandamus is accordingly denied.

Cox, J., concurs; Gray, J., absent.