State ex rel. Watkins v. Macon County Court

Hough, J.,

Concurring. — I concur in affirming the judgment of the circuit court refusing the writ of mandamus, but do not concur in all the reasons given therefor. I adhere to the decision of this court in the ease of the State v. Shortridge, 56 Mo. 126, and if this were a proceeding to compel the county court to levy a tax to pay the bonds, it would be directly in point. I doubt, however, whether we are at liberty to go behind the judgment in favor of the relator, and inquire into the cause of action, or obligation upon which it is founded, and then say that the judgment must be paid according to the terms of the contract on which it is based. The judgment should have *52followed tlie contract; and in that it does not, it is an erroneous judgment; it isa general judgment entitling the relator to a general execution, and if the county has property subject to execution, it might be sold thereunder. The contract is merged in the judgment, and it cannot, in my opinion, now be looked to to determine the rights of the relator under his judgment. Sufficient reasons are given in the opinion of the court for refusing the writ without' going behind the .judgment in favor of the relator. Vide. State ex rel. Zimmerman v. The Justices of Bollinger County Court et al., 48 Mo. 475.