42 F. 665 | U.S. Circuit Court for the Southern District of Iowa | 1890
On the 2d day of October, 1864, a judgment was rendered in this court in favor of Michael McAleer, and against Clay county, Iowa, for the sum of $9,172.50. On the 2d day of May, 1881, an information for a mandamus was filed by Hugh McAleer and Hugh Mc-Aleer, Jr., administrators of tho estate of Michael McAleer, who had died in the state of New York on February 22, 18.81, in which it was charged that the judgment in question remained in force, that a large part thereof remained unpaid, that an execution had been issued and returned unsatisffed, that it was the duty of the' county board of supervisors to levy a tax for tho payment of tho portion of tho judgment remaining unpaid, and praying that a writ of mandamus bo issued, commanding the supervisors to levy, collect, and pay over a tax sufficient to discharge said judgment in full. On the 15th day of May, 1882, the court, upon the hearing, granted a writ of mandamus requiring the board of supervisors to levy a tax of one mill on the dollar of the assessed value of the taxable property in Olay county for the year 1882, and to collect and pay the same upon the-McAleer judgment, and that they levy and collect a tax of one mill for each succeeding year until the said judgment, interest, and costs should bo paid in full. Upon a writ of error the supreme court reversed this judgment, on the ground that the answer to the information averred that the whole of the six-mill levy for the year 1882, which was the limit of taxation permissible under the statute of Iowa, was needed to meet the ordinary expenses 'of the county, and that the court could not require the county to set aside any part of the levy to pay the judgment when the whole of the levy was needed to meet the current expenses of the county. Bee 115 U. S. 616, 6 Sup. Ct. Rep. 199. The mandate showing the reversal of the judgment by the supreme court was filed in this court May 17, 1886. On the 13th day of May, 1890, an amendment to the information was filed, in which it was averred that, if the full levy of six mills on the dollar of the taxable property in the county be levied each year, there will he realized therefrom a sum sufficient to defray the ordinary current expenses of
Under the provisions of section 8025 of the Code of Iowa, executions may issue at any time before the judgment is barred by the statute of limitations. When the 20 years from the date of the judgment expired, the right to the issuance of a writ of execution terminated. If, however, before the 20 years had expired, an execution had been issued, and a levy had been made thereunder, the lien thereby acquired would not have been ended by the expiration of the statutory limitation, hut the, judgment creditor would have been entitled to the benefit of all rights acquired by the levy of the execution during its life-time, and to such auxiliary process as might be necessary to enforce payment out of the-property thus subjected to the lien of the judgment and execution while the same were in life. Counsel for plaintiffs claim that the proceedings for mandamus are to be deemed to be of the nature of an execution, and that as the original information was filed and service had long before the judgment was barred, it is still open to the plaintiffs to pursue the relief sought by the information. Conceding, for the sake of the argument, that the filing of the information is to be deemed to be the equivalent of the issuance of a writ of execution, it does not follow that thereby any lien or other "right has been acquired which remains in existence after the judgment has ceased to be operative and enforceable. If, during the life-time of an execution, the same is levied upon property, thereby a new right is created in the execution plaintiff. The levy of the execution is prima facie a satisfaction of the judgment; and the lien, whether legal, equitable, or statutory, created by the levy of an execution, is not defeated by the mere fact that after the creation of the lien the period of time has elapsed which terminates the right to the issuance of an original writ of execution upon the judgment, or which bars a new action upon the judgment. The mere filing of an information seeking a writ of