80 Mo. 190 | Mo. | 1883
This is a proceeding by mandamus, in which an alternative writ was issued by the circuit court of Jasper county reciting all the allegations of the petition, and was as follows:
“ State of Missouri.
To Isaac Lauderbaugh, Clerk of School District No. 1, Township 29, Range 32, Jasper County, Missouri:
Whereas, it has been represented to our honorable cir-
On the day named, the defendant appeared and moved to .quash the said alternative writ, assigning the following reasons : 1. The same was improperly and improvidently ordered by the court. 2. The said writ does not state facts sufficient to warrant its issuance or the relief prayed. 3. It does not appear from said writ that any obligation or duty was imposed bylaw on defendant to do the acts commanded. 4. It does not appear from said writ that defendant has failed to do any duty enjoined on him by law. 5. It does
This motion was by the court overruled, and the defendant excepted, and declining to plead further, final judgment was rendered awarding a peremptory writ as prayed. The defendant, thereupon, having unsuccessfully moved to arrest the judgment, filed his bill of exceptions, and brings the case here by appeal.
The first point made by appellant in the brief filed is, that th murrer should have been sustained because the alternative writ does not specifically state relator’s right to the remedy invoked, nor defendant’s duty to perform the act demanded; that it is not stated how, or on what account district No. 1 became indebted to No. 11, nor why relator has any right to a fro rata share of the school property of district No. 1. To .this the answer is, that the issuance of a peremptory mandamus in the original cause between the same parties iyas in Pur_ suance of a judgment of the court, and the question of the indebtedness of district No. 1 to district No. 11, is res judicata.
The demurrer, however, should have been sustained, because the prayer of the petition and the command of the writ that the appellant, “immediately on receip^ 0f this writ, cause to be levied and collected off of school district No. 1 for the use of district No. 11 the amount certified to you as clerk aforesaid, by the committee appointed by the order of this court, * - * amounting to the sum of $390.50, or show cause,” etc. Section 19 of the school law provides that: “ When a new district is formed, which shall include within its limits those who have heretofore aided in the erection of a school house in the district from whence they were detached, and they propose to surrender to the old district all claim therein for their share of said property, this fact
While the writ might have been amended, as was held in the case of the State ex rel. Broadhead v. Berg, 76 Mo. 136, yet, as defendant stood upon his demurrer, the court could not have, at that state of the proceeding, awarded a peremptory writ, because it would have been granting what respondent was not entitled to. There is nothing in the petition or writ to show that the judgment in the original mandamus proceeding found that plaintiff had the right to have the whole amount charged upon district No. 1, as it stood after the detachment of that portion which in whole or part composed district No. 11. The court could grant nothing except what was commanded by the writ, and not being warranted in granting that, the demurrer should have been sustained, A mandamus proceeding cannot be used as a “drag-net.” The pai'ty seeking relief by that proceeding must specify just what he wants, nothing more or less. Tapping on Mandamus, 324, 327; High on Extraordinary Remedies, § 548; State ex rel. v. Town of Pacific, 61 Mo. 158 ; State ex rel. v. Holladay, 65 Mo. 76 ; State ex rel. v. Kansas City, St. J. & C. B. R. R. Co., 77 Mo. 144. In Hartshorn v. Assess
The judgment is reversed and the cause remanded.