People ex rel. Wallace v. Abbott

Headnote

Trustees of a school district — when they will be compelled by mandamus to make an order on funds subject to their disposition, to pay a judgment recovered against them, -

Appeal from an order directing that a mandamus issue to the defendants, trustees of a school district, commanding them to pay tó the relator or his attorney, the amount of a judgment recovered against them, or to deliver to him an order for said amount made and drawn by them upon the collector of said school district directing’ such collector to pay the same to him. The relator obtained a judgment against the defendants upon a claim for an unpaid balance of salary. The trustees having refused to pay the judgment or to give an order on ’the district collector for the amount, this writ was applied for and obtained.

The Court at General Term said: “While it is true that an execution may be issued against the property of school trustees, to be collected out of their individual property, it is not the only remedy of the judgment creditor. The debt is against the school district and no inability upon the part of school trustees to pay individually will absolve the district from its debt. The defendants are a board, or a quasi corporation, and as such, have the money of the district in their hands. No question is made as to the amount being sufficient and as to the fund being applicable to pay the debt. The board has no excuse to offer upon this branch of the case why it does not do its duty to the relator. The facts, therefore, establish mandamus to be the proper remedy. Remedy

by action is not a bar to the granting of a writ of mandamus to compel the performance of a duty. The judgment is final as to the application. Costs were granted by the judgment and cannot be assailed collaterally. By section 3244, Code, costs cannot be given in actions against school trustees for acts or omissions which could be determined upon appeal to the State superintendent. If the trial court determined the question erroneously, it cannot be questioned either upon an execution or upon an application for ma/ndamus. It appeal’s that the superintendent of public instruction declined to take the question. There was an issue of fact as to whether the trustee had paid for a year and the relator was not a teacher after his discharge.

“ The order should be affirmed, with costs and disbursements.”