41 Mo. App. 503 | Mo. Ct. App. | 1890
Appellants’ counsel has furnished the following, which he denominates “abstract of the record,” and to which alone he must look for an understanding of this controversy: “On the third day of June, 1889, respondent filed his petition in the Jasper circuit court, asking for mandamus, setting up the following grounds: First. That a judgment had been rendered against the city of Carthage, in the circuit court of Jasper county. Second. That an execution had been issued and returned unsatisfied: Third. That the appellants were the mayor and city council of said city, and that the petitioner was the assignee for value of said judgment. Such petition duly alleged the incorporation of the city, and stated that the respondent was without any adequate remedy at law, and in all other respects was sufficient as to form. The appellants being duly served appeared in court, and, on the thirteenth day of June, filed their return, admitting the allegations in respondent’s petition to be true, but set up as reasons why the peremptory writ should not issue: First. That the city of Carthage is a city with less than ten thousand and more than one thousand inhabitants, and is prohibited by the constitution of the state of Missouri (section 11, article 10) from levying a tax exceeding fifty cents on the hundred dollars’
I. From this very meager presentation of the case, we assume that plaintiff Dougherty, the holder of a
In mandamus proceedings, under our practice, we regard the pleadings “much after the fashion” of pleadings in ordinary cases — the alternative writ being regarded as the petition, and the return thereto corresponding to the answer. The return is an answer to the alternative writ. State ex rel. v. Everett, 52 Mo. 89; Wood on Mandamus, 43. If any distinction exists, it would seem that even greater strictness is required in the fulness, or completeness, of the return than in the answer. High, in his work on extraordinary legal remedies, at section 460, says: ‘ ‘ The proper function of the return is to show, not merely what would be a prima facie right in the respondent, in the absence of any allegation to the contrary, but to show a right to refuse obedience to the writ in view of the allegations which it contains and if it fails to do this it is demurrable.” Now, the return here is in the nature of a confession and avoidance — confessing the judgment