Goodenough v. Ticknor

251 N.W. 593 | Mich. | 1933

This is a mandamus proceeding in which plaintiff seeks to have defendants directed to make payment of certain matured drain bonds and of matured interest coupons. The relief sought was granted by the trial judge and defendants have appealed. The bonds here involved were in part issued incident to the construction of the Beyer drain (see Hankinson v. Deake, ante, 1) and part were issued incident to the construction of the West Park Miller avenue drain. Except as hereinafter noted the questions presented are controlled by our recent decision inRegents of the University of Michigan v. Pray, 264 Mich. 693. Appellants here assert that mandamus will not lie "when the validity of the drainage district, which has issued bonds, is questioned." This contention is based upon the fact that certain property owners by injunction suit resisted assessment and payment of the drain taxes. See Hankinson v. Deake, supra. Plaintiff herein was not a party to that suit and decree therein could not bind him. At the time plaintiff instituted this suit there was upwards of $20,000 in the Beyer drain fund, a sum largely in excess of the payment sought by plaintiff.

"Mandamus is a proper remedy to compel payment of a claim against a municipal or public corporation where there are funds generally applicable to its payment. So mandamus lies to compel payment of a claim against a special fund which is in existence and in the hands of the proper officer." 38 C. J. p. 768.

See, also, Ullman v. Sandell, 158 Mich. 496; Spiegel v.Barrett, 189 Mich. 111; Regents of the University of Michigan v. Pray, supra.

The fact that the injunction suit, to which plaintiff was not a party, was pending, did not impair plaintiff's right to have payment nor relieve defendants of the obligation to make payment.

Judgment is affirmed, with costs to appellee.

McDONALD, C.J., and POTTER, SITARPE, FEAD, WIEST, and BUTZEL, JJ., concurred. CLARK, J., took no part in this decision.