lrI'ALEERV. CLAY COUNTY.
McALEER et al.
tI. CLAY CoUNTY.
(Oircuit Oourt, 8. D. Iowa, O. D. June 16,1890.'
The holders of a judgment against a county obtained a writ of mandamu8 commanding the supervisors to levy a tax to discharge the judgment. The decree awarding the writ was reversed by the supreme court, and the cause remanded, whereupon an amended petition formandamu8 was filed. Pending the proceedIngs in the supreme court the period during which, under Code Iowa, § 3025, an execution could issue on the judgment, expired. Held, that the collection of tbe judgment could not be enforced by mandamu8, since the judgment was no longer operative, and the pendency of the mandamus proceedings created no liel'.
At Law. Proceedings for mandamus. On demurrer to answer. MitcheU &; Dudley and Hughes &; Ha8ting8, for plaintiffs. A. a. Parker, for deftmdant.
SHIRAS, J. On the 2d day of October, 1864, a judgment was rendered in this,court in favor of Michael McAleer, and against Clay county, Iowa, for· the sum of $9,172.50. On the 2d day of May, 1881, an information for a mandamus was filed by Hugh McAleer and HughMcAleer, Jr., administrators of the estate of Michael McAleer, who had died in the state of New York on February 22, 1881, in which it was charged that the judgment in question remained in force, that a large part thereof remained unpaid, that an ex;ecutioh had been issued and ,returned unsatisfied, that it was the duty of the county board of supervisors ,to levy a tax; for the payment of the portion of the judgment remaining unpaid, and praying that a writ of mandamus be issued, commanding the su pervisors to levy, collect, and pay over a tax sufficient to discharge said judgment in full. On the 15th day of May, 1882, the court, upon the hearing, granted a writ of mandamus requiring the board of supervisors to levy a tax of one mill on the dollar of the assessed value of the taxable property in Clay county for the year 1882, and to collect and pay the same upon the McAleer judgment, and that they levy and collect a tax of one mill for each succeeding year until the said judgment, interest, and costs should be paid in full. Upon a writ of error the supreme court reversed this judgment, on the ground that the answer to the information averred that the whole of the six-mill levy for the year 1882, which was the limit of taxation permissible under the statute of Iowa, was needed to meet the ordinary expenses of the county, and that the court could not reqdhe the county to set aside any part of the levy to pay the judgment when the whole of the levy was needed to meet the current expenses of the county. See 115 U. S. 616, 6 Sup. Ct. Rep. 199. The mandate showing the reversal of the judgment by the supreme court was filed in this court May 17, 1886. On the 13th day of May, 1890, an amendment to the information was filed, in which it was averred that, if the full levy of six mills on the dollar of the taxable property in the county be levied each year, there will be realized therefrom a sum sufficient to defray the ordinary current expenses of
the county, and leave a yearly surplus which may be applied to thp- payment of the judgment in faVor of McAleer; and, further, that there is now in the treasury of the county the sum of $5,000 not appropriated to the payment of current expenses, whioh the board 6f supervisors refuse to apply to the payment of said judgment; and the relators therefore ask ap. that the county officials be required to levy annually a tax of and pay overthe surplus left of the amounts realized, after defraying the current expepses, until the judgment is fully paid·· 'In the second division of the answer filed to this amended informatiQP,jt is averred that, before the filing of saidamendedinformation, the judgment agaiustthe county had been barred and extinguished by the operation of the statute of limitations of the state of Iowa; that the period'of/liniitation applicable to judgments of, courts of record is 20 years; that the judgment was rendered in1864, and had not been revived by any action in any court since that date; and that, consequently, these proceedings for the enforcement of the judgment are abated. To thiS'di\ltsion of the answer the relators have demurred, and thereby is pl'e&ii1ted' tbe questiob of theeffed upon the proceedings of, the admit-, ted fsllt that by Is pseoI time the judgment sought to'be 'collected has becoIl1&btmed., ,' , : . Und<trthe provisions' of section 3025 of the Code of Iowa, executions ,the judgment is barred by the statute of may iissue at 'any time litnltatiotls.When the 20 years from tbeclate of the ludgment expired, the fight tc; the is",uance of a writ of execution terminated. If, .however, before,the 20 years had expired, an execution had been issued, and a 1e'1y 'bM ,been made; thereunder I the lien thereby acquired would not ha.ve been ended by the expiration of the statutory limitation, but the jUdgnient creditor would have been entitled to the benefit of all rights acquil'ed:byfthe levy of the exeoution during itsUfe-time, and to such auxiliary:process as might be necessary to enforce payment out of the property thus!lubjected to the lien of the judgment and execution while the satne were in life. Counsel for plaintiffs claim that the proceedings for t'Il4ndammare to be deemed to be of the nature of an execution, and that as the original information was filed and' service had long before the judgment was barred, it is still open to the plaintiffs to pursue the reliefSought by the information. Conceding, for the,sake of the argument; that the' filing of the information is to be deemed to be the equivalent of.theissuance of a writ of exeoution, it doesllot follow that thereby any lien' or other right has been acquired which remains in existence after the judgment has ceased to be and enforceable. If, during the life-time of an execution, the same is levied upon property I thereby a new: right is created in the execution plaintiff. The levy of the execution: is prima facie a satisfaction of the judgment; and the lien, whether legal,equitable, or statutory, created by the levyofan:execution, is not defeated 'by the mere fact that after the creation of the lien the period of tiine has elapsed which terminates the right to the issuance of an original writ of execution upon the judgment, or which bars anew action upon ftbe judgttlent. The mere filing of: an information seeking a writ of
X'ALEER V. CLAY COOlllTY.
mandamus to enforce the levy of a tax for the payment of a judgment
creates no lien upon property Thejudgment rendered in 1882, directing the levy of a tax in, that and the succeeding years, has been wholly set aside. No lien qJ'right to the levy of a tax was then created.. 'fhe right to the iSlsuanceof a mandamu8 for the purposes set forth in the' information filed May 13, 1890, is based upon the fact that there e;ists in favor of plaintiffs an operative and enforceablejudgment against' the county. The aid of the court is sought to put in motion the· taxing power of the county through its officials, in order to realize funds sufficient to pay this judgment. The answer shows that belore the amended information was filed the judgment had becottle, inoperative and nonenforceable by reason of the lapse of time creating a statutory bar to its enforcement. The action sought by the presflnt information is not for the preservation and enforcement of a lien or right coming into existence before the judgment became barred. If the facts were that, by operation of a tax ordered to be levied by a judgment in mandamus rendered during the life-time of the judgment, there was a fund realized, and in the hands of the county, properly applicable to the payment of the judgmeJit, it might well be that the court would enforce the application of such fund to the payment of the judgment, even though the bar of the statute had become applicable. The present proceedings are wholly prospective, and it is now sought to compel the county officials to hereaftet levy and collect a tax, or to hereafter apply money in the treasury to the payment of the judgment in question. Unless there exists in favor of the plaintiff a valid and enforceable judgment against the county, there is no foundation for such action on part of the court. If for any reason the judgment has become inoperative or has been barred, no ground .for its enforcement exists,either by way of execution or other equivalent proceeding. In thtl of the supreme court in R088 v. Duval, 13 Pet. 44, "it cannot be supposed that the legisiature would bar an action on a judgment, and still authorize an execution to be issued on it." If the right to an execution is barred, the right to a writ of mandamus to serve the purposes of an execution must be likewise barred. The demurrer to the second division of the answer filed by the county officials is therefore overruled.
REPOUTER, vol. 42. UNITED STATES MIDGLEy.1
(District Court, E. D. Pemisywania. May 20, 1890.)
CUSTQMS DUTIES-WOOL-"MERINO BLOOt>, NEAR OR REMOTE. 10
In' the tariff act of 1883, in the enumeration of wools of the first class, the phrase, "wools of merino blood, near "remote" is limited to mean within the limit Qf merino blood requisite to characterize the wool as possessing merino qualities, and adding to the value.
SAME..-(JHANGlC OF CLASS-PRESUMPTION.
Where au article has been finally placed in a class other than that in which it was originally, and the collector bring'ssult to 'recover the excess of duty, he is entitled to a preimmptionthat it is rightfully placed in said otner class, and the burden of proof.is. on tne defendant. to prove that it rightly belonged to the class in which it had been formerly placed.
SAME.....EvIDENOE-CONFLICTING CLASSINGs. BY EXAMINER.
A wool was originally placed in the tbird class by the examiner, who afterwards, the orders of the appraiser, made another examination, and placed it in the second, and, upon the' refusal of the appraiser to Indorse, made a third examinatiOn, and placed it in tbe first class. On, trial several experts testified, upon seeing the wool for the first time, that it was plainly clothing wool, (first class.) Held, the fact of the originliJ.· jUdgment of the' government examiner was evidence for the defendant as to the" grade" of aud to impeach the reliability of plaintiff's expert testimony produced at the trial.
At Law. This was an action brought by the United States to recover $3,894.38, alleged to be due as additional duty upon an importa.tion of 221 bales of so-called "Smyrna wool," imported at Philadelphia, April 9, 1889. The wo()l was entered as carpet wool, and was valued a.t 5t pence per pound, dutiable at 2l cents per pound. The examiner in the first instance returned the wool as entered in class 3, under 12 cents a pound, and his return was approved by the appraiser as of April 15, 1889. Upon April 26, 1889,&' reclassification was made in cla.ss 2, under 30 cents a pound, at 10 cents a pound by the examiner, but no approval was entered by the appraiser. UpOll. Ma.y 22, 1889, a further reconsiderationand reclassification'was made in class 1, under 30 cents a pound, 10 cents a pound, and value advanced,to 6t pence per pound, and upon this classification the liquidation was made by the collector, and the bal· ance aforesaid alleged.. to be due.' The samples sent to the appraiser's stores for examination remained under the control of the government uutil liquidation. Protest was made by the importer that the government was bound by the first return of the appraiser, and that the other classifications were unlawful. It was also contended that the importation was bought, sold, and used under the name of "Smyrna wool." W. Wilkins Carr, Asst. U. S. Atty., for plaintiff. John G. Johnson and Frank Pritchard, for defendant. BUTLER, J., (wally charging the jury.) The plaintiff in this case asks the court to say to you: "(1) If you believe the article in suit is what is known.as clothing wool arid of merino blood, immediate or remote, or a wool of like character to any of those mentioned in class No. I, then your verdict should be for the plaintiff." That is correct.
lRepOl"ted by Mark Wilks Collet, Esq., of the Philadelphia bar.