State ex rel. Mills v. Kispert

21 Wis. 387 | Wis. | 1867

Downer, J.

1. Was it the duty of the treasurer to pay to the relator the money collected by him under and pursuant to the provisions of sec. 78, ch. 15, E. S., without an order of the town or any of its officers ? It is contended that sec. 86, and the provision respecting auditing claims, require that in all cases the town treasurer should pay money out of the treasury only on the order of the town or the proper officers. But we think the money by him collected to pay a judgment under the provisions of sec. 78, is an exception to the general rule, or at least no more governed by it than are Ms duties in respect to the money by him collected which he is to pay to the county treasurer. The machinery provided by section 78 takes the place of an execution against the town, and the town treas-tirer, who collects the money, ought, the same as a sheriff who collects money on execution, to pay it, without further order or direction from any one, to the party for whom it was collected. The statute says the money “ shall he paid to the party entitled to it.” By whom shall it be paid? Obviously by the person collecting it, and that too without further delay, as all the delays of the law as to that claim were intended to be ended when the money was collected by the final process of the law as prescribed in sec. 78. There was then nothing left for the town or its supervisors to do by way of auditing or allowing the claim. That had been done by the court rendering the judgment; and the whole matter was beyond the control of the town or its supervisors. When the treasurer collected the money, he received it for the use of the judgment creditor.

2. Did chap. 226, Pr. & L. Laws of 1866, authorize the treasurer to retain the money ? Section 11 of that act was no doubt designed to, and does in terms, repeal the provisions of section 78, ch. 15, R. S., so far as it authorizes the collection and payment of the relator’s judgment. But the money was collected by the treasurer before that act was published and in force ; and if our view in regard to the first point is correct, the relator, the moment the money was paid to the treasurer, had such an interest in it, that it was not in the power of the legislature to divest it; and so much of the act a.s provides for diverting the money collected for the relator by the treasurer, is void.

8. Was the treasurer justified by the injunction in not paying over the money ? It is maintained by the counsel for the relator, that the injunction suit is collusive, and all proceedings in it void. We do not see any certain evidence of collusion on the part of Reinel, the treasurer. It would be a dangerous doctrine to .establish, that a defendant, enjoined from doing any particular act, may himself determine that the injunction is void, and disregard it. We think he did right in obeying, the injunction, and that it is a protection to him so long as it is in force; and it cannot be annulled in this action. The remedy of the relator is not by mandamus, but by petition to be made a party to the injunction suit, or by some other proceeding. As to the remedy by petition, see Marks' Heirs v. Aubry, 2 A. K. Marsh.,206; Smith v.Evans, 3 id.,217; Farmers' and Millers' Bank v. Luther, 14 Wis., 99. We are also of opinion, as the interest of Mills appeared on the face of the complaint, that the circuit court might, in its discretion, have permitted him on bis motion or petition to defend the action in the name of the treasurer.

By the Court. — The order of the circuit court overruling the motion to quash, is reversed, and the cause remanded for further proceedings.