Day v. Callow, No. 2,327

No. 2,327 | Cal. | Jul 1, 1870

Rhodes, C. J.,

delivered the opinion of the Court:

There is no room to doubt, that mandamus is the proper remedy to compel a County Treasurer to satisfy the warrants described in the complaint-

The Court did not err in striking out the portions of the answer which relate to the official bond of the former Treasurer and the sureties on his bond, and the administratrix of his estate. Neither the sureties of the deceased Treasurer, nor his administratrix, could be compelled to pay the warrants in .controversy out of the Redemption Fund, because they have no control over the fund.

Upon the issue of payment of the warrants by the former County Treasurer, the evidence is conflicting, and we cannot disturb the finding that they remained unpaid. The official entries of the Treasurer would, in ordinary cases, be entitled to great weight, when opposed only by oral testimony; but in this case, the law required the bid for the surrender of the warrants, to be accompanied by the warrants (see the Act in relation to the Board of Supervisors of Butte County, Statutes of 1865-6, p. 208); and they thus came into the hands of the Treasurer. The loose provisions of this statute left it in the power of the Treasurer to enter upon the warrants the satisfaction provided for in Section 15 of the Act (see Statutes of 1863-4, p. 328), without having paid the bid, and to receive credit on the Auditor’s books upon his own unsupported statement. In ordinary cases—and it should be so in every case—the- amount paid to a creditor, is paid on an Auditor’s warrant, specifying the sum to be paid, and payment is made on delivery of the warrant to the Treasurer. The statute under consideration opens the door to the perpetration of fraud, both on the treasury and the creditors of the county. The entry of the satisfaction of the warrants, made under such circumstances, is entitled to no more weight than oral testimony.

There is not shown to be in the Redemption Fund, more than the sum of $500. The deficiency has not occurred through the acts of the present Treasurer; but when he entered into office, there was a deficit in the several funds of about $13,000. He is not in default, except to the extent of the money in his hands, belonging to the Redemption Fund. The mandamus should not compel him to pay on the warrants, more money than there was in that fund. The judgment is erroneous, so far as it commands him to pay money that might thereafter come into that fund, although it is his duty to satisfy the plaintiff’s warrants, when there is sufficient money in that fund.

We have considered some of the questions arising on the motion for a new trial, because no objections was- made by the plaintiff; but they were not entitled to consideration on this appeal, for the reason that no appeal was taken from the order denying the new trial. An appeal from “all the orders and rulings occurring on the trial, and excepted to by the defendant,” might, perhaps, be of, some avail in certain cases; but counsel need not be told, that such an appeal is not an appeal from an order granting or refusing a new trial.

Cause remanded, with directions to the Court below to -modify the judgment, by commanding the Treasurer to pay the plaintiff the sum of $500 towards the purchase of the warrants, the respondent to pay the costs of the appeal.