Opinion
No. 20093
Decided December 21, 1926.
Mandamus — Action to compel municipality to pay judgment or levy tax — Clerk and treasurer necessary parties — Sections 2295-13 and 5649-1c, General Code — Pleading — Necessary to allege that fiscal officer certified judgment to council.
IN MANDAMUS.
Mr. C.A. Radcliffe and Mr. M.A. Daugherty, for relator.
Messrs. Pyle McGonagle and Mr. J.F. Thompson, for defendants.
This is an original action in mandamus instituted in this court. The relator seeks a peremptory writ of mandamus, commanding the defendants to pay an existing unpaid judgment rendered on behalf of the relator against the village of Bremen, with interest, or that:
"If there is no fund in the treasury of said village that can be appropriated and used in the payment of said judgment, said officers be required to levy a proper and sufficient tax upon all the taxable property of said village to pay said judgment with the interest thereon, or that said officers issue the bonds of the said village for that purpose, or that they proceed forthwith to raise said funds in some other lawful manner."
A demurrer was filed to this petition, upon the grounds (1) that there is a defect of parties defendant; and (2) that the petition does not state facts which show a cause of action.
Upon consideration of the record and briefs, it is ordered and adjudged that the demurrer filed to the petition herein be and hereby is sustained as to the first ground of demurrer appearing therein, namely, that there is a defect of parties defendant, for the reason that under Section 5649-1 c, of the General Code, the fiscal officer (in this instance, the clerk) of the village is a necessary party to the action, and that, under Section 2295-13 of the General Code, the treasurer of the village is a necessary party to the action.
It is further ordered and adjudged that the demurrer filed to the petition herein be and hereby is sustained as to the second ground of demurrer appearing therein, namely, that the petition does not state facts which show a cause of action, in that there is no allegation in the petition that relator's judgment was ever certified to the council of the said village by the fiscal officer (the clerk) of the said village, as required by Section 5649-1 c, of the General Code.
Leave is hereby granted to the relator to plead within 20 days from this date.
Demurrer sustained.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.
ROBINSON, J., not participating.