
    No. 23,969.
    The City of Anthony, Plaintiff, v. C. D. Cutler, as County Treasurer of Harper County, et al., Defendants.
    
    SYLLABUS BY THE COURT.
    
      Mandamus — Alternative Writ Good On Its Face — Motion to Quash Writ Denied. An. alternative writ of mandamus good on its face will not necessarily be quashed where the briefs disclose facts which, if true, constitute a complete defense to the writ.
    Original proceeding in mandamus.
    Opinion filed March 20, 1922.
    Writ denied.
    
      H. O. Davis, city attorney, Donald Muir, and E. C. Wilcox, both of Anthony, for the plaintiff.
    
      Vernon Day, of Anthony, for the defendants.
   The opinion of the court was delivered by

Marshall, J.:

This is an original proceeding in mandamus to compel the defendant as county treasurer of Harper county to pay over to the plaintiff certain money on account of taxes levied by the plaintiff. An alternative writ of mandamus was issued to which the county treasurer has filed an answer in which he says that he has paid over to the plaintiff the money described in the alternative writ. The board of county commissioners filed a motion asking that it be made a party defendant and in that motion alleged: ■

“That said C. D. Cutler is merely a nominal defendant herein and said board is the real party in interest in the subject-matter of this litigation; that the said defendant neglects and refuses to make any defense herein, and is in collusion with said plaintiff to confess judgment and immediately pay over the sums of money mentioned in said writ; and that said defendant concealed from said Board of County Commissioners and the county attorney of said county the fact that any alternative writ had been served upon said defendant in this proceeding until after said defendant had made his return to said writ.”

That motion was allowed, and the action is now before the court on the motion of the board of county commissioners to quash the alternative writ.

The alternative writ alleges that—

“Said county treasurer has failed and refused, and still fails and refuses, to pay to the plaintiff herein, The City of Anthony, certain money due same, upon property situated in the said City of Anthony, which was bid in by said defendant herein at a tax sale held under and pursuant to certain resolutions passed by the Board of County Commissioners of Harper County, Kansas, provided for under Chapter 162 of the Laws of 1891.”

It should be noted that the writ alleges that at the time it was issued the money was due and impliedly alleges that the money was then in the hands of the county treasurer. If these allegations of the alternative writ are true, and no facts can be shown in defense, the motion to quash should be denied; but, the briefs-disclose that those allegations may not be true and disclose facts which may constitute a complete defense in this action. The statements contained in the briefs are of such a nature that the court might properly assume that they are true and decide this case on those statements, but the consequences are so grave that the court does not feel justified in deciding this case, on that assumption. The facts disclosed in the briefs, if true, will be easily proved and ought to be admitted. They should be alleged in an answer and, if not admitted, should be established by evidence.

The motion to quash the alternative writ is denied; the board of county commissioners is given twenty days in which to answer; twenty days additional are given in which to take the evidence by deposition or stipulation; and the cause is set for hearing in June.  