Hartman v. City of Brunswick

98 Mo. App. 674 | Mo. Ct. App. | 1903

ELLISON, J.

This is a proceeding by mandamus to compel the city authorities of Brunswick, Missouri, to levy and collect a tax for the payment of a judgment of four hundred dollars which had theretofore been duly obtained against such city by the plaintiff. The trial court ordered a peremptory writ, and defendant appealed.

It seems that a portion of defendant’s return to the alternative writ was stricken out on motion by plaintiff. Thereupon, plaintiff filed his motion for a peremptory writ for certain grounds therein stated. This motion was sustained and writ ordered. Thereafter, defendant filed its motion “to set aside and arrest the judgment” for certain alleged errors; and for the further reason that “upon the pleadings and record” the judgment should have been for defendant. This motion was overruled and exception taken by defendant. No other' exception is preserved by the bill of exceptions save the one just mentioned. There is no exception preserved which was taken at the time of the court’s ruling. This practically eliminates the bill of exceptions and leaves us to examine the record proper, which includes the alternative writ.

Passing, then, to the record proper, we find that it fully sustains the judgment of the court. The writ sets, forth that plaintiff obtained a judgment against the city. That proper execution had issued and been returned nulla tona. That defendant had not made a levy as in duty bound, although lawfully authorized and empowered so to do. The command of the writ (in the alternative) was that a levy be made within legal limits, the proceeds of which 1 o be paid to plaintiff or his assigns, save such as was necessary to pay reasonable salaries of city officers therein named, and a police force, as provided by section 3233, Revised Statutes 1899. The writ, instead of being deficient, was, in point of fact, a fuller allegation of plaintiff’s ease than defendant had a right to require. It was fully up to the requirement as set out in Hambleton v. Town of Dexter, 89 Mo. 188. A much less statement would not have entitled defendant to complain, since proceedings' under the statute, of the nature of these, are informal. State ex rel. v. Norvill, 80 Mo. App. 180; Hubbel v. Maryville, 85 Mo. App. 165.

- The judgment of the court and the power of the city are supported by the case of Webb v. City of Carterville, 142 Mo. 101, and 153 Mo. 128.

The judgment will be affirmed.

All concur.