State ex rel. Bushnell v. Gates

Paine, J". The mandamus should have been granted by the circuit court. The case presented was clearly within the provisions of sections 77 and 78, chap. 15 of the Revised Statutes, which make it the specific duty of the clerk to assess upon the taxable property of the town a tax sufficient to pay the judgment. It is said that the relator had another remedy. But it appears that the other remedy suggested would have been substantially the same one he now seeks, that is, a mandamus to compel the assessment and collection of a tax to pay the amount due him. The law under which the bonds were issued, upon the coupons of which the judgment was recovered, required the assessment of a tax to pay the interest. .Undoubtedly the owner might have compelled such assessment without recovering a judgment. If that right furnished any reason why he should not be entitled to an action against the town, and to recover a judgment on the coupons, that reason should have been urged when such an action [214] was brought. Not baying been urged, or, if urged, having been overruled, and a judgment having been rendered, and sustained by this court, it cannot, whether right or wrong, now be reviewed in this proceeding, but must be taken to be a good and valid judgment for all purposes. If so, the law is as explicit in requiring a tax to be assessed to pay the judgment, as it was. in requiring one to pay the coupons. And if the proper officers refuse to assess it, it is difficult to see upon what principle the appropriate remedy could be' denied. The objection, so far as it had any force, went to the party’s right to recover judgment at all. But after a judgment has been recovered, it is too late to urge it, whatever effect it might otherwise have been entitled to. The reason of it no longer exists. The coupons have been merged in the judgment. And if any tax at all is assessed, it must now be assessed to pay the judgment, and not to pay the coupons. And to sustain this objection now would be to deny the remedy altogether. It seems the papers laying the foundation for this application were served on the predecessor in office of the respondent. It may be that in such oases, in proceedings to charge a party personally with contempt, some notice or request should be first served upon him, and that he ought not to be so charged upon the strength of proceedings taken against his predecessor, of which he may in fact have had no knowledge. But so far as the advancement of the principal remedy is concerned, it is to be regarded as a proceeding against the officer, and not against the individual; and when proper papers have been once served upon the officer, any proceeding which they warrant may be taken against his successor, without commencing de novo. This rule is essential to the due administration of justice, which might otherwise be baffled by the regular changes in office, or defeated by resignations made for the very purpose of destroying proceedings [215] already commenced. Soutter v. Madison, 15 Wis., 37; Graham et al. v. The City of Maysville et al., 6 Am. Law Reg., 626-27. We can see no reason wby the writ should not have been granted.« By the Court. — The order discharging the rule to show cause is reversed, with costs, and the cause remanded. •