Baxter Springs news. [volume] (Baxter Springs, Kan.) 1882-1919, 1901-11-09

NJ. C. sec. $40; IS Am. Dec. ga note;
There lie no special provision in
Kansas for the enforcement of
judgment against II city of the sec.
ond class, therefore the issuance of
the execution In this case and the
necessity of following it by man.
damus.
But if the execution creditor has
been guilty of unreasonable delay
in enforcing the payment of his
Judgment the courts will decline to
aid him by inandamus-will refuse
the writ; II East 266; II A. & E. 3l6;
8 Mont. 1854; % Ark. 294; 4 Ga. 20; IA
A. & E. Enc. Law l07; l5S N. Y. 125;
124 U. S. 1888; II Q. B. 442; III N. Y. 81;
l27 U. S. 105; High Extr. Legal Rem.
3rd Edi. sec. 30 to "a Neb. 196; u
Mich. 622: so Nd. 255; 104 N. Y. 06;
1888 N. Y. 125: Is Kan. 90 IA delay OF
only two years..
If the statute of limitations gov
ern the subject matter of the right
in question bars action thereon,
mandamus will be refused; apply
ing this here: AS action on these
bonds was barred five years after
their maturity, then five years after
judgment on the bonds mandam-
us would be refused); High on Elk.
Legal Rem. Bird Edi. sec. sob; "a 10.
us; SO Ill. 435; 8 Mon. 1854; AZ N. J. L.
81; "a Neb. 1875; SO Md. 255; 1O4 N. Y.
90; 90 Mich. 40; IS Tex. 47s; 70 Mich.
622. But the Ito us) strongest au-
thority affecting this matter Is
found in late Kansas case in the
3rd Kans. App. Rept. at page 1872,
decided in 1896. In this case the
city of Parsons Ia city of the second
class appealed from decision of
Judge McCue awarding a writ of
man damus in favor of one Miller to
compel the city to levy tax to pay
a judgment Miller had obtained
against the city. The city claimed
that the only way to collect the
Judgment was by execution aud re-
lied upon the case Mr.. Gates stood
upon. viz, Is Kans. page TO- The
court said: AS rule the manner
of collecting money for the pay
ment of a city's Indebtedness is by
taxation, aud we know of no other
method in this state for the collec-
ton of such indebtedness from IA
city of the second class, and while
it has been held in some states that
execution may issue, we believe il
ia the doctrine of most states and
the best text writer's that the only
proper means is by taxation. The
usual method of collecting a judg-
ment against municipality being
by taxation. il must be assumed in
this case that the only way, if any,
is by the proper officials levying
tax for that purpose. We are of the
opinion that mandamus, which, af.
ter judgment, is in the nature of an
execution, was the proper remedy
Judgment, affirmed granting writ
of mandamus). Applying the fore
going principles-sustained by the
general concurrence of all the
courts of the United States and
England-tot this Haines judgment,
the writer asserts with the utmost
confidence:
First: That If an execution were
properly issued on this Haines
Judgment in 1894, upon failure to
find private property, owned by the
city, out of which to make the judg.
ment, the execution creditor, Haines
was then obliged, promptly, to take
steps for the issuance of a::inandam-
us to compel the levy of a tax to
pay his judgment;
Second: Haines' delay (of nearly
twelve years from date OF his judg-
ment and of seven years from the
return of his execution in 1894 in
not applying for a mandamus-the
certain and the only remedy left
him, is such unreasonable delay,
such laches, that the court will now
Ideny him a writ of mandamus;
Third: The Haines' judgment is
unenforceable-it is dead;
Fourth: The Mayor and council
should let it remain in the grave in
which it's owner has placed there
we want no resurrection.
Nov. g, 1901. SAMUEL H. SMITH.