85 Mo. App. 165 | Mo. Ct. App. | 1900
— Emma and George Hubbel obtained judgment in the circuit court of Nodaway county against the city of Maryville for $560, which they duly assigned to the Nodaway Valley Bank. Execution was issued on the judgment and returned by the sheriff nulla tona. Thereupon the bank, under section 4977, Revised Statutes 1889, applied to the circuit court for a mandamus to compel the city to proNde by a levy óf taxes for the payment of the judgment. The court issued an alternative writ, which was duly served on the proper authorities. The city then filed a motion to quash on account of the insufficiency of the alternative writ. The motion was overruled and the city declining to plead further, a peremptory mandamus was ordered and the city has appealed.
The grounds of objection to the writ, among others, are that it fails to allege that the city of Maryville is an incorporated city and has power to levy and collect taxes, and that it fails to allege that, there was no money in the city treasury applicable to the judgment.
As to the first ground, we will take judicial notice of the powers and duties of the city of MaryNlle under the law. See. 1465, R. S. 1889; Savannah v. Dickey, 33 Mo. App. 522.
As to the second ground, the writ shows that the city and its officers refused to pay the judgment and that an execution was issued and returned by the proper officer. The officer’s return itself is set out in the writ and shows that there was no property, of any kind, wherewith to make the money called for by the writ. We can not discover any practical reason for holding this writ to be fatally defective when every fact necessary to-entitle the judgment creditor to relief appears with reasonable certainty.
A proceeding of this nature, authorized by the statute aforesaid, is altogether informal. State ex rel v. Slavens, 75 Mo. 508; State ex rel. v. Norvell, 80 Mo. App. 180. The case of Hambleton v. Town of Dexter, 89 Mo. 188, was not prosecuted under the statute, but instead, the usual procedure in mandamus was invoked. No execution was issued in that case and therefore, of course, no return was made by the sheriff. It was therefore necessary to make all the facts appear in that case unaided by an execution and return. The case is without application to the proceedings here involved.
The statute itself refutes the position taken by the city. It prescribes as the only condition to a judgment creditor’s right to a writ of mandamus that he shall have had an execution issued out of a court of record and “returned unsatisfied in whole or in part, for want of property whereon to levy.”
Other grounds of objection are not deemed to be well founded or applicable to a proceeding under the statute aforesaid. The judgment of the circuit court will therefore be affirmed.
