State ex rel. Cassidy v. Slavens

75 Mo. 508

• Court: Supreme Court of Missouri
• Decided: April 15, 1882
• Status: Published

Opinion

Sherwood, C. J.

l. mandamus: cities: specialtax: execution.

Section 77, 1 "Wagner’s Statutes,. 617, controls this case. That section provides that whenever an execution issued out of any court of p . . , ° record m this State against any incorporated town or city shall be returned unsatisfied, etc., such court may by writ of mandamus compel the proper officers to-levy a special tax to pay such execution and all costs. In our opinion when the remedy provided for by this section is invoked, no formal petition or application for the issuance of an alternative writ is necessary. It would seem to be sufficient to show the execution and the return thereon, and then call for the alternative writ of mandamus. The-statute evidently contemplates a summary proceeding in aid of the unsatisfied execution. And there is some significance in the fact that section 77, supra, is found under the title of “ Execution ” as if to. show that the mandatory process is more in the nature of an ordinary execution than the usual process designated by the name of mandamus. If no formal pleading were necessary in instances like the present as preliminary to the issuance of the alternative writ,, then certainly no demand was necessary to the maintenance and proper prosecution of the present proceedings. It is not necessary to rely upon common law authorities' in reference to this matter of demand, because the statute is sufficient in and of itself and does not require any adventitious aids.

2 ____. cj!ailge ox venue: costs. And we do not regard this as a fit occasion for an application for a change of venue, no more than we would were an application made in term time for igguance 0f an execution. All matters in controversy between the parties hereto had been settled by the judgment recovered. And the motion for costs made by the clerk was properly denied. Section 1, page 687, General Statutes 1865, does not apply to a case of this kind. Here the action of the relator had ceased and had become merged in the j'udgment recovered for her use. The time for such motions had consequently gone by. Eor these reasons we affirm the judgment.

All concur.