59 Cal. 105 | Cal. | 1881
The matters set forth in the supplemental answer, together with those set forth in the amended answer in the cause, which were incorporated in the supplemental answer by reference to the amended answer, show a ratification by the plaintiff of the levy and sale by the Sheriff of the County of Fresno, of the warrant drawn by the defendant as Auditor of the same county, in favor of- plaintiff, for the sum allowed him by the Board of Supervisors for services rendered by him as District-Attorney.
It is averred in the supplemental answer, which sets forth matters which occurred subsequently to the commencement of the proceeding, that the Sheriff, under his levy and seizure of the warrant, sold it under writs of execution regularly issued to him, and delivered it to the purchaser with a certificate of sale thereof; and further, that the plaintiff was present at said sale, with his attorney, and did not forbid it or object to it; that he (plaintiff) received and retained the balance in the Sheriff’s hands after satisfying the judgments on which the writs were issued, and demanded that satisfaction of the judgments be entered, which was done.
The averments in the supplemental answer show that plaintiff must have known all the facts as to the levy, seizure, and sale of the warrant by the Sheriff. Such conduct on the part of the plaintiff was a ratification of the acts of the Sheriff,
It is also averred, that after the sale by the Sheriff the purchaser presented this warrant, with the certificate of sale, to the Treasurer of the County of Fresno, and it was paid.
The motion to be allowed to file the supplemental answer, setting forth the facts above stated, was made before the hearing of a demurrer to the amended answer, and was in time. The proceeding was commenced on the 7th day of May, 1880; the amended answer was filed on the 18th of the same month. To this answer a demurrer was interposed on the next day. The motion was made and denied on the 30th of May, 1880, before the demurrer above mentioned was heard and determined. There was, under this state of facts, no unreasonable delay in making this motion, and where such is the case, the motion should be granted. (Sage v. Mosher, 17 How. Pr. 367; Palmer v. Murray, 18 id. 545.)
The motion to be allowed to file the supplemental answer should have been granted, and it was an abuse of discretion to refuse it.
The judgment is therefore reversed, and the cause remanded.
Shaepstein, J., and Myeick, J., concurred.