State ex rel. Hixson v. Nerry

105 Mo. App. 458 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating the facts as above).

—1. The relator has asked this court to dismiss the appeal, charging non-observance of rule of this court by appellants; the failure by appellant to present the whole of the testimony as required for review of an equitable proceeding and finally that the appeal was allowed August 27, 1902, returnable to the April term, 1903. While the printed abstract is not complete, we should hesitate to summarily dispose of the case by dismissal of the appeal solely uppn that ground, and while the misapprehension that this has been converted into a proceeding in equity by reason of the quasi interplea of appellant filed in response to’ order directed to her to show cause, is but natural, yet as presently determined the full proceedings in the trial court are not essential, for the proceeding is not equitable but at law. Finally, if respondent desired to avail herself of the failure by appellant to perfect her appeal with diligence and dispatch, the statutory requirements should have been followed, preliminary to such motion.

2. The extraordinary remedy here invoked by respondent has been defined, “a command issued from acourt of law of competent jurisdiction in name of the State directed to some inferior court, officer, corporation or person requiring them to do some particular thing, therein specified which appertains to their office or duty. ” 19 Am. and Eng. Ency. (2Ed.), p.16; High, Ex. Rem. (3 Ed.), sec. 1. The subject of mandamus in this State is treated in chapter 49, R. S. 1899, which is made up of brief sections prescribing the method of pleading and procedure, with provisions governing award of costs, but in nowise enlarging the scope or amplifying the application of the remedy. The origin, history and nature of the writ of mandamus will be found interestingly discussed by the Supreme Court in the case of State ex rel. The Laclede Bank v. Lewis, 76-Mo. 370, in which the definition of the eminent commentator above cited is adopted, which varies in no substantial respect from that quoted, and the conclusion,, as therein announced, stated that it is regarded in modern times as in the nature of an action by the party in whose favor the writ is granted, for the enforcement of a right in cases where the law affords' no other adequate means of redress. That it lies in those cases, of which this is a type, involving merely the performance by a county official of his plain ministerial duty of payment of a warrant drawn by lawful and proper authority upon a fund in his custody, legally applicable to its payment and requiring the exercise of no official discretion on his part, can not be reasonably questioned. Spelling, Injunction and Extraordinary Remedies (2 Ed.), chap. 46, sec. 1480, et seq.; 19 Am. and Eng. Ency., p. 790, and authorities cited. State ex rel. v. Adams, 161 Mo. 349; State ex rel. v. Thomas, 43 Mo. 228; State ex rel. v. Draper, 48 Mo. 213; State ex rel. v. Mason, 153 Mo. 23; Am. and Eng. Ency., supra, 789.

We have searched in vain for any lawful authority,, by which such a proceeding as inaugurated by relator, could be converted into an equitable action, the public-disbursing officer changed to a stakeholder of public funds held for specific educational purposes and strangers required to appear and interplead for relief of the respondent, the officer against whom the writ was asked. Upon the allegations of the return of the county-treasurer, the relator was entitled to a peremptory writ. State ex rel. v. Adams, supra. The point, sought to be made by appellant in behalf of the official, that the costs-of the proceeding were awarded against him by the judgment of the circuit court, is fully met by the suggestion that no complaint by him through exception to any ruling on appeal appears. We would add that the finding upon the facts by the trial court is approved, and the judgment thereon was correct.

The judgment is affirmed.

Bland, P. J., and Goode, J., concur.