Opinion
No. 27830.
May 16, 1950. Motion for Rehearing or to Transfer to Supreme Court Denied June 13, 1950.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, MISSOURI.
J.L. London, St. Louis, for appellant.
Louis B. Sher, St. Louis, Joseph Nesser feld, St. Louis, for respondent.
Relator seeks by mandamus to require the respondent, one of the circuit judges of the City of St. Louis, to assume jurisdiction and take steps to revive a judgment for alimony in relator's favor and against her former husband, Joseph Silverman, now a resident of New Jersey.
On September 29, 1936, the relator was granted a divorce by a decree entered in the circuit court of the City of St. Louis, and, by stipulation of the parties, a judgment for alimony in the sum of $1,500 and the sum of $20 per week from the date of the decree. Thereafter, Joseph Silverman was delinquent as to the payments of alimony, and a dispute arose between Minnie Silverman and Joseph Silverman as to the amount of alimony due under the decree, and on July 1, 1946, by stipulation of the parties, Minnie Silverman accepted the sum of $5,000 in full settlement of her claim under the judgment for alimony down to and including December 31, 1946, since which time the $20 per week alimony has been accruing, less a credit of $100 which relator claims was paid in March, 1947.
The original judgment, as above stated, was entered on September 29, 1936. On September 10, 1946, relator as plaintiff filed a motion in the circuit court of the City of St. Louis for a writ of scire facias to revive her judgment for $20 per week alimony. This was nineteen days prior to the date that the judgment would have been barred by limitation as to revival. This motion was granted and on September 10, 1946, a writ of scire facias was ordered to issue directed to the sheriff of the City of St. Louis, returnable to the December term, 1946. On September 18, 1946, the court, of its own motion, set aside the order of September 10, 1946, and on the same day an affidavit was filed by relator's attorney showing that the defendant in the scire facias proceeding, Joseph Silverman, was then living in Manville, New Jersey. Thereupon, a writ of scire facias to revive the judgment was ordered to issue and a notice was issued by the circuit clerk directed to any officer authorized to serve process in the State of New Jersey, returnable to the December term, 1946, of the circuit court of the City of St. Louis, commanding the judgment debtor to appear on the first day of the next term of court, on the first Monday of December, 1946, to show cause, if any he have, why said judgment should not be revived. On September 23, 1946, the above mentioned notice of the scire facias proceeding was personally served on the defendant in the County of Somerset, State of New Jersey, and proof of such service was filed in the circuit court on October 23, 1946.
On June 6, 1947, on motion of Joseph Silverman, who limited his appearance to the motion, the writ of scire facias and the notice thereof were quashed. On June 26, 1947, the relator by her attorney filed an affidavit that Joseph Silverman was a non-resident of Missouri, and on the same day the court ordered that the judgment debtor be notified by publication returnable forty-five days from July 3, 1947. That order was set aside by the court on July 2, 1947, and a new order was entered on that day and an order of publication was directed returnable to the September term, 1947, of the circuit court. This order of publication was published in the St. Louis Daily Record, and purported to notify the judgment debtor of the scire facias proceedings, and on July 5, 1947, the clerk of the circuit court mailed a copy of that order of publication to Joseph Silverman at Manville, New Jersey. On September 10, 1947, Joseph Silverman, specially appearing for that purpose, filed motion to quash the order of publication, which motion the court sustained on December 22, 1947. Thereafter, on December 31, 1947, on relator's application an order was made that a writ of scire facias issue, but this order was vacated by the Court on January 8, 1948. Thereafter, on March 5, 1948, relator orally applied to respondent for a writ of scire facias to revive the judgment of September 29, 1936. Respondent thereupon ordered that a writ of scire facias issue directed to the sheriff of the City of St. Louis returnable to the June term, 1948. A writ of scire facias was issued by the clerk under this order and was returned not found at the June term, 1948. Thereafter, on August 10, 1948, the relator orally moved the court to grant an order of publication, and the court made such order returnable September 27, 1948. This order of publication was published in the St. Louis Daily Record. Thereafter, the defendant, Joseph Silverman, specially appearing for that purpose, moved to quash that writ of scire facias together with the order of publication which was based thereon. That motion was sustained by the court on January 4, 1949. On January 13, 1949, the relator filed a motion praying that the court set aside all orders of court entered in said proceeding, overrule all motions theretofore to quash the services and to order the cause set down for a hearing. That motion was overruled by respondent on May 20, 1949.
On June 19, 1949, relator filed her petition for mandamus against respondent in this court. On September 16, 1949, this court denied the petition for writ of mandamus but thereafter, on October 29, 1949, said order of September 16, 1949, was set aside by this court of its own motion and an alternative writ of mandamus was ordered to issue herein. Respondent's return was duly filed. The facts being of record and not disputed the cause was argued and submitted on the legal questions involved.
It has been said that a writ of "mandamus" is a hard and fast writ, an unreasoning writ; it is essentially the exponent of judicial power, and hence is reserved for extraordinary emergencies. State ex rel. School Dist. No. 24 of St. Louis County v. Neaf, 344 Mo. 905, 130 S.W.2d 509. It does not issue in doubtful cases, and to be entitled to the writ the relator must show a clear legal right to the relief as prayed for. State ex rel. Huskey v. Eversole, Mo.App., 177 S.W.2d 654; State ex rel. and to Use of Crites v. Short, 351 Mo. 1013, 174 S.W.2d 821.
The filing of a petition for a writ of scire facias to revive a judgment, though proper, is unnecessary. The writ may be applied for by petition, motion or praecipe. City of St. Louis v. Miller, 235 Mo.App. 987, 145 S.W.2d 504. In this instance the relator as plaintiff saw fit to and did attempt to institute the scire facias proceeding by filing a motion praying therefor in the court where the judgment was originally rendered. It is conceded that when the motion was filed and at all times since Joseph Silverman, the defendant and judgment debtor, was and is a resident of the State of New Jersey. There is no pretense that Joseph Silverman has any property, real or personal, in the State of Missouri. The original case in which the judgment for relator was rendered was a divorce action, and in so far as the divorce was concerned it was an action in rem (the marriage status being the res) but in so far as the judgment for $20 per week alimony was concerned, it was strictly a judgment in personam. Moss v. Fitch, 212 Mo. 484, 111 S.W. 475, 126 Am.St.Rep. 568; Elvins v. Elvins, 176 Mo.App. 645, 159 S.W. 746. The marriage status was ended once and for all (save fraud in the procurement of the decree, which is not in this case), and left the judgment for weekly alimony as one in personam. It was not a lien on anything, until so made by an execution in the hands of the proper officer. Section 1520, R.S. 1939, Mo.R.S.A. § 1520; Dreyer v. Dickman, 131 Mo.App. 660, 664, 111 S.W. 616. There was no execution and no property of the judgment debtor over which the court could exercise jurisdiction. And so relator's rights must be considered merely as one who has a personal judgment against a debtor who resides in another state. Has such a judgment creditor a right to proceed by scire facias with an action to revive the judgment on constructive or substitute service? We are cited to no statute or authority conferring such right, while there is a wealth of authority that such service of process will not support a judgment in personam.
The statutes dealing specifically with scire facias are Sections 1271 to 1277, R.S. 1939, Mo.R.S.A. §§ 1271-1277. The mode of service is prescribed by Section 1274 and is that, "The scire facias shall be served on the defendant or his legal representatives, terre tenants or other persons occupying the land, and be directed to and executed in any county in this state. * * *." That section is by its wording restricted to a scire facias to revive a judgment and lien on land. The next two sections, 1275 and 1276, provide for publication "If the defendant cannot be found." These two sections refer to the service provided in the preceding section, 1274, and have no bearing on a case as we have before us where the purpose is to revive a personal judgment where no land and no property are involved. Of course, this does not mean that a personal judgment cannot be revived on personal service within the state, but it does show that the method of service is not provided for in those sections of the statute.
A judgment creditor has a common law right to revive a judgment except in so far as the above mentioned statutes may control in the revival of a judgment and lien on lands. Hence, we must go to the general statutes of our state to ascertain the method of service in any and all actions, not otherwise provided for, including scire facias. When we do this we find Section 27 of the Civil Code, Laws 1943, p. 366, Mo.R.S.A. § 847.27, which provides for personal service, and Section 28, pages 641, 642 and 643, Laws of Missouri 1945, Mo.R.S.A. § 847.28, providing for service by mail or publication. The law requires that a scire facias be served in the same manner as an ordinary summons. Andrews v. Buckbee, 77 Mo. 428; Rule 3.02(f) of the Supreme Court of Missouri. Section 27 provides for personal service, which means personal service within the territorial limits of the state. There was no such service in this case.
Section 28 provides as follows: "Service by mail or by publication shall be allowed in all cases affecting a fund, will, trust estate, specific property or any interest therein, or any res or status within the jurisdiction of the court, or in any special proceedings in which notice by mail or by publication is authorized, including but not limited to actions to quiet title and actions to ascertain and determine title to real estate. If the defendant so served does not appear, judgment may be rendered affecting said property, res or status within the jurisdiction of the court as to said defendant, but such service shall not warrant a general judgment against such defendant."
That section was never intended to allow a judgment in personam on the constructive service therein provided. It expressly limits such method of service to proceedings in rem where the specific property or the res or status is within the jurisdiction of the court. And if it had been intended to permit such service on which to base a personal judgment it would have, to that extent, been invalid.
Section 28 designed to take the place of Sections 891 and 900, R.S. 1939, Mo.R.S. A. §§ 891 and 900, which were repealed by the new Civil Code. Section 891 provided for orders of publication, "In suits in partition, divorce, attachment, suits for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens and all other liens against either real or personal property, and in all actions at law or in equity which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court * * *."
And Section 900 provided that in lieu of publication in any of the cases mentioned in Section 891, "the plaintiff may cause a copy of the petition, with a copy of the summons, to be delivered to each defendant residing or being without this state," and then provided as follows: "* * * Service of process in conformity with this section shall be as effectual within the limits of this state as personal service within this state, and judgments rendered against defendants thus served shall have the same effect and force within the limits of this state as judgments rendered against defendants personally served with summons in this state."
But this part of the section quoted and purporting to authorize a personal judgment upon service in another state has been held to be unconstitutional. Wilson v. St. Louis S. F. R. Co., 108 Mo. 588, 18 S.W. 286, 32 Am.St.Rep. 624; Moss v. Fitch, supra; Jones v. Anheuser-Busch Brewing Ass'n, Mo.Sup., 188 S.W. 82; Priest v. Capitain, 236 Mo. 446, 139 S.W. 204.
Whatever may be the rule in other states, the rule is firmly established in this state that no personal judgment can be had on process in this state, executed outside of the state, or upon service by publication. Moss v. Fitch, supra. A court's jurisdiction in personam is confined to persons within the territorial jurisdiction of the court, and it follows that service of process made beyond such limits is entirely ineffective to confer jurisdiction over the persons against or on whom it is so made. State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404. In proceeding to reopen and modify a divorce decree, service of notice on non-resident divorced wife's attorney in New York and by publication, or by posting a copy in the clerk's office, was void and did not give the court jurisdiction to reopen the decree. State ex rel. Shoemaker v. Hall, Mo.Sup., 257 S.W. 1047. "In this connection it is well to remember that it is the settled law and almost axiomatic that the statutes of a state or country prescribe the law within its boundaries only, and have no extraterritorial force or effect." Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591, 594. The foregoing cases not only announce the rule in this state, but also the generally accepted rule in other states. The rule is stated in 33 C.J., Judgments, § 47, as follows: "A valid personal judgment may be rendered against a nonresident where he was brought within the jurisdiction of the court by service of process made upon him within its territorial jurisdiction or by his voluntary appearance. But merely constructive or substituted service, or personal service made beyond the limits of the state, will not support a personal judgment against a nonresident; personal service within the jurisdiction or voluntary appearance is essential, * * *." See, also, 49 C.J.S., Judgments, § 24.
The wording of Section 28 is not the same as that contained in Sections 891 and 900, in that by those sections constructive service was limited to "suits in partition, divorce, attachment, suits for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens and all other liens against either real or personal property, and in all actions at law or in equity which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court." Whereas, Section 28 limits constructive service to "all cases affecting a fund, will, trust estate, specific property, or any interest therein, or any res or status within the jurisdiction of the court," etc., and then provides, "If the defendant so served does not appear, judgment may be rendered affecting said property, res or status within the jurisdiction of the court as to said defendant, but such service shall not warrant a general judgment against such defendant." The words "or any res or status within the jurisdiction of the court" mean claims of like character as those specified, that is, "affecting a fund, will, trust estate, specific property, or any interest therein." These words could not logically be construed to have a broader meaning and authorize a personal judgment on such constructive service, else they would be unconstitutional as was the clause in Section 900 which authorized a personal judgment on such service. In the case of Moss v. Fitch, supra, it is said, 212 Mo. loc. cit. 498, 111 S.W. loc. cit. 477: "In the early case of Smith v. McCutchen, 38 Mo. [415], loc. cit. 417, this court said: `No sovereignty can extend its powers beyond its own territorial limits to subject either persons or property to its judicial decisions. Jurisdiction must be founded either upon the person of the defendant being within the territory of the sovereign where the court sits, or his property being within such territory; for otherwise there can be no sovereignty exerted upon the known maxim, "Extra territorium jus dicenti impune non paretur." Even, therefore, should a Legislature of a state expressly grant such jurisdiction to its courts over persons or property not within its territory, such grant would be treated elsewhere as a mere attempt at usurpation, and all judicial proceedings in virtue of it held utterly void for every purpose. Story, Confl. L., par. 539. A judgment obtained against a party who has no notice is void. It is unnecessary to cite adjudged cases in support of principles so well settled as these.'"
Relator relies on the case of Peak v. Peak, Mo.Sup., 181 S.W. 394. That case does not support relator. That was strictly an action in rem. The plaintiff had obtained a divorce from her husband and was adjudged alimony of $8.33 1/3 per month which was decreed to be a specific lien on the husband's interest in a tract of land which the divorced wife sought to partition. At the same time the wife sought by scire facias to revive the judgment and lien for alimony, and in her petition for scire facias described the land and asked for a revival of the lien, and the writ issued expressly notified the judgment debtor that its object and purpose was not merely to revive the judgment but to revive the lien on his real estate. That was an action for a judgment in rem, and entirely differs from this case where there is no property, real or personal, against which a lien would or could attach.
Not only so, but relator is in this position: On September 10, 1946, on relator's motion, timely filed, a writ of scire facias was issued. On September 18, 1946, the court of its own motion set aside the order of September 10, 1946, and on the same day the court ordered that a writ of scire facias issue and notice thereof be served on the judgment debtor in New Jersey. But, on June 6, 1947, the writ of scire facias and the service thereof were quashed by the court. That ended the proceedings instituted on September 10, 1946. It was a final judgment quashing the writ as well as the service. It was an appealable order, or as relator would now contend, subject to be remedied by mandamus. Relator did neither. What relator did was to accept the court's action in quashing her writ of scire facis, and filed an affidavit of nonresidence of the judgment debtor and published notice thereof. This order of publication was on July 2, 1947, long after the original judgment had become barred by limitation, so far as the right to scire facias is concerned. The application of September 10, 1946, for scire facias had spent its force and ended when the court quashed the writ, whether such action of the court was right or wrong. Thereafter, if another writ of scire facias was applied for, either orally or by motion, petition or praecipe, with an order of publication, it was after the original judgment was barred, as to a right of revival by scire facias, and was the beginning of a new action to revive. Relator had abandoned her scire facias of September 10 or 18, 1946, by acquiescing in the court's order of July 2, 1947, quashing the writ. If under the circumstances the later publication of notice was authorized at all, it was the institution of another action by scire facias, the first action having been ended by final judgment.
Relator has not shown such "clear legal, right" to mandamus as the law requires, and the alternative writ of mandamus should be quashed and permanent mandamus denied. It is so ordered.
ANDERSON, P. J., concurs in result.
McCULLEN, J., concurs.
On Motion for Rehearing or to Transfer to Supreme Court
Relator (relatrix) contends as heretofore that service of notice on the defendant in another state will authorize the revival of a personal judgment for alimony which is about to expire by reason of the statute of limitation. However, relatrix has apparently entirely overlooked the very statute of limitation which she seeks to avoid the effect of by revival of her judgment. That statute is Section 1038, R.S. 1939, Mo.R.S.A., and it provides that the revival must be "upon personal service duly had upon the defendant or defendants therein." And as pointed out in the majority opinion, personal service means service within this state.
That section of the statute then provides that "after the expiration of ten years from the date of the original rendition or revival upon personal service * * * such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever." There are no exceptions.
This section of the statute has recently been before the Supreme Court en Banc in the case of Wormington v. City of Monett, 358 Mo. 1044, 218 S.W.2d 586, 588, where it is held: "So section 1038 now provides for a conclusive presumption of payment ten years from the date of the original rendition of a judgment or ten years from its revival, or from the entry upon the record of the last payment on the judgment. No exceptions are provided." (Emphasis ours.)
The motion for rehearing or to transfer to the Supreme Court is overruled.
Anderson, P. J., concurs in result.
McCULLEN, J., concurs.
In concurring in result in this case, I do not want to be understood as agreeing to the proposition that a judgment in personam could not be revived on service without the state, if the statutes of this state so provide. According to the weight of authority, it is not necessary that there be personal service of the writ of scire facias within the state where the original judgment was rendered. 49 C.J.S., Judgments, § 548, page 1010; 34 C.J. page 675; Bank of Edwardsville v. Raffaelle, 381 Ill. 486, 45 N.E.2d 651, 144 A.L.R. 401; Collin County National Bank v. Hughes, 110 Tex. 362, 220 S.W. 767; Shefts v. Oklahoma Co. et al., 192 Okl. 483, 137 P.2d 589; Duffy v. Hartsock, 187 Va. 406, 46 S.E.2d 570. The reason for the rule is stated in a note in 144 A.L.R. 403, loc. cit. 404, 405, as follows: "The argument made, and sometimes adopted by the courts, in favor of the validity of such service in connection with the revival of judgments against defendants who are nonresidents of the state (at least at the time the revival was sought, whether or not they were so at the time the original judgment was rendered), is that the revival proceedings do not constitute a new action independent of the original action (in which jurisdiction was properly acquired over the defendant by sufficient service or appearance) so as to necessitate, in the case of an in personam judgment, a personal service within the jurisdiction of the court, but rather a mere continuation of the original proceedings, and that the jurisdiction properly acquired in the original action is sufficient to sustain the jurisdiction of the court to revive the judgment upon constructive service, by publication or personally, without the state, upon the non-resident defendant.
"Thus rejecting the contention that it was necessary, before a revivor of the lien of a judgment, that the judgment debtor be served with notice of the scire facias in person, and that personal service is as essential in the revival of the lien of the judgment as it was in the first place to obtain the original judgment, the court in Waldstein v. Williams, 1912, 101 Ark. 404, 142 S.W. 834, 37 L.R.A., N.S., 1162, held that the lien of a personal judgment can be revived by constructive service, the original judgment having been rendered after personal service upon the judgment debtor, and service of the scire facias having been made by publication upon the nonresident debtor, under the provisions of the Arkansas statute which in effect provided that if the debtor cannot be found the court shall make an order requiring all persons interested to appear and show cause why such judgment or decree should not be revived and the lien continued, that a copy of such order shall be put up at the courthouse door of the county in which such judgment or decree may have been ordered, and that if upon the service or publication of the scire facias the defendant does not appear and show cause why such judgment or decree shall not be revived, the same shall be revived and the lien continued for another period of three years. The court said that the proceedings under the statute to revive the lien of the judgment are only subsidiary to the original action, that they do not constitute a new action, but only a continuation of the old action.
"And the constitutionality of the Illinois statute providing for constructive service upon a nonresident defendant in an action to revive a judgment was sustained in the reported case of Bank of Edwardsville v. Raffaelle [381 Ill. 486, 45 N.E.2d 651] (reported herewith) ante, [144 A.L.R.] 401, as against the contention that it violated the due process clauses of the state and Federal Constitutions, on the theory that the revivor judgment is equivalent to a judgment in personam and requires personal service in order to be valid. Accordingly, a revival of a judgment obtained by confession, upon constructive service by publication and mailing outside the state, upon the nonresident defendant, as provided by the Illinois statute, after the return of `not found' upon the writ of scire facias to revive the judgment, was declared to be consistent with due process, the court taking the view that the revival of a judgment was not parallel to the filing of a new suit to secure a personal judgment, which requires personal service within the jurisdiction of the court."
Our courts have held that the suing out of a writ of scire facias to revive a judgment is but a continuation of the suit in which the judgment was obtained, and is not a new judgment is personam, as the majority opinion seems to assume. In re Jackman's Estate, 344 Mo. 49, 124 S.W.2d 1189; State ex rel. Buder v. Hughes, 350 Mo. 547, 166 S.W.2d 516; Peak v. Peak, Mo.Sup., 181 S.W. 394; Glidden-Felt Mfg. Co. v. Robinson, 163 Mo.App. 488, 143 S.W. 1111; Bick v. Dixon, 147 Mo.App. 69, 126 S.W. 235.
The majority opinion holds that a personal judgment cannot be obtained by service outside the state. That is a correct decision, and the cases cited so hold. But, that is not the problem before us. In the case at bar, the question to be determined is whether in revival proceedings the statutes of this state authorize service without the state.
On September 18, 1946, plaintiff, in the instant case, filed an application for personal service without the state, and, pursuant to this application, a writ was issued and served on the defendant in the state of New Jersey. The statute under which this attempted service was had is Section 28 of the General Code of Civil Procedure, Laws Mo. 1945, p. 640, Mo.R.S.A. § 847.28. In the first paragraph of said section it is provided: "Service by mail or by publication shall be allowed in all cases affecting a fund, will, trust estate, specific property, or any interest therein, or any res or status within the jurisdiction of the court, or in any special proceedings in which notice by mail or by publication is authorized, including but not limited to actions to quiet title and actions to ascertain and determine title to real estate. * * *" (Emphasis ours.)
Subsection (e) of Section 28 provides for personal service without the state in those cases mentioned in the first paragraph of said section.
Service outside the state, under the provisions of said subsection (e) of Section 28, can be considered valid service in revival proceedings only if they are "special proceedings in which notice by mail or by publication is authorized." (Emphasis ours.)
Sections 1275 and 1276, R.S.Mo. 1939, Mo. R.S.A. §§ 1275 and 1276, provide for orders of publication in suits to revive judgments. No distinction is made in these statutes between a suit to revive a judgment which is a lien on real estate, and a mere personal judgment. The question then is presented as to whether such suits are "special proceedings" within the meaning of the statute. There are no decisions construing the meaning of "special proceedings."
If we apply the rule of ejusdem generis to aid in ascertaining the kind of actions embraced within the term "special proceedings," we must hold that suits to revive personal judgments are not included. However, the statute is very broad and, by the use of the word "any", might be said to be all inclusive and embrace such actions as the one at bar. Such a construction could reasonably be made for, after all, Lord Tenterden's rule is only used to aid in arriving at the true intention of the Legislature in enacting the statute, and should never be used to overrule an intention that is clear. But I am not willing to give such a broad construction to the statute, or to hold that service under the statute is personal service within the meaning of Section 1038, R.S.Mo. 1939, Mo.R.S.A., in the absence of authority to do so from our Supreme Court, especially in view of the decision in Union Bank of Wichita v. Lamb, 227 S.W.2d 60, and Supreme Court Rule 3.02(f).
I am also of the opinion that relator did not abandon her right to take further proceedings in connection with the writ issued September 19, 1946, by failing to appeal from the order of July 2, 1947, quashing the writ, or by failing to apply immediately thereafter for a writ of mandamus, or by her subsequent efforts in attempting to secure service by publication. Relator's remedy, by appeal, was not full and adequate. State ex rel. Snow Steam Pump Works v. Homer, 249 Mo. 58, 155 S.W. 405. And relator's failure to immediately seek relief by mandamus merely subjected her to a possible charge of laches. Such charge could not be successfully maintained in view of the facts and circumstances in this case. The rule applicable is stated in 35 Am.Jur., Sec. 312, p. 65, as follows: "Application for the writ should be made within a reasonable time after the alleged default or neglect of duty, and if not seasonably made, the delay may afford sufficient cause for its denial, particularly when the delay has been prejudicial to the rights of the respondent or defendant. In determining what constitutes such unreasonable delay as will justify refusal of the writ, regard must be had to the facts and circumstances of each particular case, to the character of the relief demanded, and to the detriment, prejudice, or injury, if any, to the respondent, or other interested person, or to the public from the delay. If it is apparent that the delay has not resulted in prejudice to the rights of the adverse party, and that the relief sought does not depend on the determination of doubtful and disputed questions of fact, the writ may be allowed, although there has been delay in asking for it, where a reasonable excuse is given for the delay." (Emphasis ours.)
Tested by the above principles, it cannot be reasonably said that relator was guilty of laches in this case as to bar her from seeking relief by mandamus.
I have set forth my views in connection with the problems presented in this case because I cannot agree with the reasoning advanced in the majority opinion, and because of the general interest and importance of the questions involved in the case.