The farmers' union. (Memphis, Mo.) 1891-1895, 1891-07-30

fmOst wrongfully} liid out and extended.
John c. MOORE,
Attorney for all the Respondents.
Filed Nov. Z. 1899.
a. Z. SELBY, Clerk.
U. S. Circuit Court, Eastern Division, Eastern
District of Missouri.
Hill, Dodge Fridley- Amendment to plead
vs. CONFORMATION forl,rc-
Scotland county, No, cmp.ory mundanu-
For further answer to information for per-
emptory mandamus In this cause respondents
say that the Judgment in this cause was rem
dered more than ten years before this appli-
cation for mandamus and no revival thereof
has been had rs provided by statutes in such
cases made and provided and therefore the
same is expire by limitation of law. the said
law being in force ut the date OF rendition of
Judgment and they therefore pray to be dis
charged with their costs and attorneys
fees in this behalf expended.
JOHN G. MOORE
Atty. for respondents
A p SELBY, Clerk
In circuit court Of U. :. for Eastern Divis-
ion OF Eastern Judicial District of Mo.
United States rel JAS Il. Dodge
Mary ii. FiE'il"y ana Evelyn Hill |
Executors OF W IN. Hill. deceased
County Court of Scotland Co. and
and th| Judges thereof
i. T. HUGuES.
Attorney for REALTORS.
JOHN c. MOORE,
Attorney for respondents.
OPINION
On motion for an alias peremptory writ of
mandamus Notwithstanding the rcture filed
Dec. 21th 1890. THAYRR, District Judge.
no in far ri. I,
TO flowing facts:
a Judgment was recovered against Scotland
county in this court on the 2,th of September.
1877 and to enforce payment of same IL pur-
emptory writ of mandamus WAS awarded in
1873 commanding the levy Of II special tax. In
accordance with the command of the writ, II
tax WAS levied which was supposed ut the
time to be adequate to pay said judgment.
\ portion OF the taxes unpaid were not paid
but were returned delinquent. the result be-
ing that the ley did not realize enough to
discharge the Judgment
When the delinquent list embracing the tax
es i'll question was returned TO the county
court, pursuant to the provisions of section
G112 Revised statutes of Missouri, iS,4. that
court for some reason failed to examine and
correct il and cause il to b" certified and filed
in the Office of the clerk of the county court.
according TO the requirement, OF sec. 6Sa4 of
said statute.
! In consequence Of the failure OF the county
court to properly examine, certify and file
| the delinquent list aforesaid. it seems that
! suits cannot he maintained by the collector
to enforce payment OF the delinquent taxes
! in question. State cx rel collectors vs. Scott
| 96 Mo IL Acting on that view of the law the
circuit court OF Scotland county has recently
| granted an injunction perpctuaily restrain
| ing the present collector of the county from
| bringing any suits to enforce payment of the
| taxes ordered to be levied by this court. that
are now delinquent.
| The return that has been fled by the res
pondcntS, leaves the facts stated in the infor-
nation practically undis2utei.
| 1t is drawn on the theory that the REALTORS
| have no right to an alias pcrcmptory writ of
| manda mus first because the judgment is
more than ten years Old: cnnd because the
present county court may be compelled tus it
claimed to correct the error committed sew
crnl years ago. in failing to examine. certify
and file the delinquent list; and third because
| the persons who then composed tht. court
may be compelled to respond in damaged for
the injury done to the REALTORS by failing to
discharge their statutory duties with refer
ence to the delinquent list.
II the return discOscS any other defense to
the relief sought, have been unable to dis
cover it.
With reference to the age of the Judgment
it is only necessary to say that its age is moi
Sufficient to create the presumption that it
has been paid, while the information shows
| in point of fact it has not been paid.
The statutes of the prohibiting the issu
bidding the revival thereof 10y 'scise fucias, "
after lapse of ten years, has been referred to,
but ii is not in terms applicable to the case
as this is not Il motion Tor an execution.
The laws of the state do permit n suit to bt
maintained on the judgment Notwithstanding
the lnpsc of time, and to such suit there
would seem to be no defense. But why should
the relntors be put to the expense of bring
ing another >lit when il stands admitted that
the Judgment is unpaid to the extent of Sl;Hl,
and that the bringing of such suit would on
ly occasion additional ard unnecessary costs
In view of these conditions conclude thu,
the first dcf.ns should he ovcrrulct. Tt
render the delinquent tax bills cnforcible Il
is manifest from the decision in State OK re
collector W. Scott that the record of the cotln
X court must be amended 10y an order so IL:
to show that certain specified action tux
en- by the county court when the dclinqucn,
list was returned.
An insErrri'lle objection to any such Mt
tempted amendment Of the record at thi
time, il found i'll the fact that the inforna
ton ayers tand the uvermcnt is not denied
that the county court fuiiei for some reason
to take such action It's the statute required.
1t is not ii case therefore OF amending rec
ord in accordance with the facts, so rs to max,
the record snow what WAS actually done: it il
rather Il satisfaction o; the record that is sug
gested as Il means of rendering the ticlinqucn
taX-boukS enforciblc.
The other remedy suggested by the return
; that the former Judges OF the county cour
may be sued for falling to dischargecthcir OF
fetal duty, when the delinquent list WAS re
turned, appears to the court to he equal,
unarailing to the REALTORS.
Upon the whole | conclude that the only cf
| fcctual method OF making good the deficit II
the former levy is by ordering II new lev,
adequate to satisfy the Judgment. The pow
cr of the court to issue an alias pcrenptor,
writ of mandamus when the first levy proves
Inadequate is recognized in Memphis vs.
Brown. g. L. S. 100, and Reed VS.. Watertown
II Wuil. iO..
1t would be more equitable, no doubt, to or
der the new levy to be made only agairs
those taxpayers who have failed to pay TIL
former assessment. hut section .5S2 revised
statutes of Missouri, 1889. does not seem Il
cover case of this character.
| That section only applies when there hn
} been II failure to levy tax, or to extend or an
thonticatr the same, or to make out and dc
liver proper tax book. Such is not the cas-
shown by this information.
The motion for an alias pcremptory writ
notwithstanding the return. is hereby sI>
taincd, and writ ordered.
a. T. SELEY. Clerk.
Filed Dec 9th. 1890
United States cx rel. Jas. Il. Dodge, ct al.
executors of VIM. Hill, deceased.
|
Scotland county court, el. al.