Howard v. City of Huron

Citations

• 6 S.D. 180
• 26 L.R.A. 498
• 60 N.W. 803
• 1894 S.D. LEXIS 141

Syllabus

<p>1. A judgment, if rendered upon the merits, is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which is offered to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.</p> <p>2. The conclusiveness of a judgment upon the rights of the parties does not depend upon its form, or upon the fact that the court investigated or decided the legal principles involved. A judgment by default or on confession is, in its nature, just as conclusive upon the rights of the parties before the court as a judgment upon a demurrer or verdict.</p> <p>3. Mandamus to enforce the judgment is a remedy in the nature of an execution for the purpose of collecting the same, and nothing that contradicts the record of the judgment can be alleged in such proceedings for its collection, with the possible exceptions noted in the opinion.</p> <p>4. Where, on the hearing in a mandamus proceeding, the plaintiff shows hi'mself entitled to only a part of the relief demanded and set forth in the alternative writ, the peremptory writ may be issued, commanding the defendant to perform the duty or act to which the plaintiff has - shown himself entitled, when such duty or act is included within the relief demanded.</p> <p>5. Where the demand upon a city is that it levy a sufficient- tax to pay a judgment outstanding against such city, and the alternative writ follows the demand, the court may, upon the hearing, issue its peremptory writ, commanding the city to levy the full amount of the tax it is authorized by its charter to levy, and to pay upon such judgment any surplus in any city fund remaining after the current expenses of the city for the fiscal year have been paid.</p> <p>6. Such direction to pay upon the judgement such surplus funds is not a violation of section 2, art. 10, of the state constitution, which provides, “Nor shall money raised by tax