United States ex rel. McKee v. County Court of Vernon County

25 F. Cas. 676, 3 Dill. 281

• Court: U.S. Circuit Court for the District of Western Missouri
• Decided: November 15, 1875
• Status: Published

Opinion

DILLON, Circuit Judge,

orally rendered decision, in substance saying: We cannot go through all the maze of procedure proposed by counsel for enforcing the judgments of this court against municipal corporations. If we should adopt the views of the defendant’s counsel, our judgments would be reduced to a sham and a farce. The practice in these proceedings is largely settled already in this circuit. Our ordinary course is not to require a special assessment, and levy at a special and arbitrary time, but to have the tax levied and collected with the general annual levy. Such special levy can then be made on the books and collected without much additional expense or trouble, and in the exercise of its discretion the court aims to avoid ail unnecessary severity and useless costs. Some delay may thereby be occasioned to the creditor, but in theory of law, he is compensated therefor by interest. This is the method we have taken and carried out in all cases.

When we have the right to order a special levy, we do not hesitate to do so, if it becomes necessary; but if the respondent appears and gives satisfactory assurance that the requisite amount will be embraced in the general levy, and that sufficient will be appropriated therefrom by a proper order to pay the particular debt, in such case a special levy may be dispensed with. We are governed by the circumstances of each case.

In the ease at bar, McKee recovered a judgment against Vernon county in November, 1874 [Case No. 8,Sol], whereon execution issued in December and payment was demanded. The execution was returned nulla bona. It was the duty of the county court, after what had been done by the relator, to levy a tax the following April, to pay this debt, but it did not do it. It was represented to us at the last term, that funds therefor were in the treasury, and if warrant were drawn the creditor would have a short road to obtain payment. Having received his warrant he was met with response of “ho funds,” and he is asked to register this warrant and wait for his turn to get his money in the order that warrants are presented. We hold that he is not required to-do so.

The motion to quash is refused, and let order go for a peremptory writ on respondent to levy at the next April term, a special tax, at the time when the general annual levy is made for county purposes, to pay the judgment. The costs of the writ served on persons not officers must be paid by the relators. Ordered accordingly.