Hambleton v. Town of Dexter
89 Mo. 188
Mo.
1886
Check Treatment
Black, J.

This is an appeal from the judgment of the circuit court awarding a peremptory writ of mandamus directing the respondents _ below, as trustees of the town of Dexter, to levy and collect a tax to pay a judgment. The relator, Hambleton, is the administrator of the estate of Benj. R. Temples. -Temples, on the thirteenth of March, 1876, recovered a judgment against the town of Dexter; the judgment remains wholly unpaid.

By section 2415, Revised Statutes, the relator could have sued out an execution, and wdien returned unsatisfied, applied for and had a writ of mandamus directing the proper officers of the town, if incorporated, to assess and collect a special tax to pay the execution. This section we have held affords a summary remedy in such cases. State ex rel. v. Slavens, 75 Mo. 508. Instead •of pursuing this course the relator presented a formal petition for writs of mandamus. The respondents moved to quash the alternative writ on the ground that it did not show that an execution had been issued upon the judgment, and for the further reason that the writ ■did not show that the defendants had any authority to provide for the payment of the judgment by taxation. Error is assigned to the action of the court in overruling this motion. The alternative writ is the first pleading, and stands as the declaration in a common law action. To this writ, and not the petition for the writ, the respondents are called upon to plead. While it should appear that the relator has no other adequate remedy, it is not necessary to allege that an execution has been issued and proved unavailing. It is enough to state that the town has no property whereon to levy an execution, and has no money in its treasury subject to the payment of the judgment. High on Ex.- Leg. Rem., sec. *191377. The petition for the writ contains in substance these allegations, but for some reason they are omitted in the alternative writ, and hence can be of no benefit to relator on the motion to quash. The allegation that the treasurer had refused to pay the judgment can hardly •be regarded as sufficient, for although he refused to pay the judgment, still, if there was money in the treasury, the appropriate prayer of the writ would be for a warrant thereon.

But a more fatal objection to the writ is, that •while it describes the respondents as trustees of the town of Dexter, it does not appear by any of the pleadings that the town is incorporated, por are any facts stated from which we can see that these trustees have any power to levy taxes. The writ must state facts in an issuable form, which show that the relator is entitled to the relief which he asks. State ex rel. v. Governor, 39 Mo. 388; State ex rel. v. Everett, 52 Mo. 89. And that he is entitled to the relief at the hands of the respondents. High on Ex. Leg. Rem., sec. 536. The writ must, therefore, show that the respondents have 'the power to levy a tax to pay the judgment. When it Is alleged that the town of Dexter was incorporated under the general law relating to the incorporation ol towns, and that the respondents are its trustees, then the courts will take judicial notice of the duties and powers of the trustees, for they are prescribed by general law. But the statute requires that certain proceedings shall be had in the county court to incorporate towns. The courts cannot take notice that these proceedings have been had, and the fact of incorporation must be averred and proved as any other fact. City of Hopkins v. Railroad Co., 79 Mo. 98. There is, therefor§, nothing in the writ to show that the respondents have the power to do the thing depianded of them. As this case must be reversed and remanded for the reasons before noted, it may not be amiss to say that the *192order of the county court of January 4, 1877, did not disincorporate what is called the old town of Dexter. These towns, when they are once incorporated, can only become disincorporated by resorting to the proceeding-pointed out by the statute. 2 W. S., 1819 and 1320. There is no pretense in the evidence that any notice ¡vas even given as required by law ; nor does the order if the county court attempt or undertake to dissolve ;he corporation previously made. Nor does the law-authorize the incorporation of a new town out of a part of the inhabitants and territory already incorporated. This last order of the county court cannot in the-.east prejudice the rights of the relator to have his judgment paid by taxation or otherwise.

The judgment is reversed and cause remanded.

All soncur.