Jensen v. McCullough

278 P. 240 | Cal. Ct. App. | 1929

THE COURT.

The respondent moves that the peremptory writ of mandate heretofore issued herein be recalled for the purpose of correction.

[1] The writ was issued pursuant to the judgment in favor of the petitioner ordering a peremptory writ as prayed in the petition. (Jensen v. McCullough, 94 Cal.App. 382 [271 P. 568].) The cause was determined upon the demurrer to the petition and the issues were therefore confined to the allegations of the petition. (Metropolitan Life Ins. Co. v. Welch, 202 Cal. 312, 314 [260 P. 545].) The issues raised by the petition related to the failure of the respondent to remit to the state the amounts found due from the county of San Benito to the state of California for the care of four defective children committed to the Sonoma State Home. Though the petition prayed for general relief and the proceeding was conceded to be a test case to determine the constitutionality and application of the state statute requiring the county to remit to the state payment for the care of defective children generally, the petitioner now does not contest the application for a correction of the peremptory writ so as to confine its operation to the individuals named in the petition.

The motion to correct the peremptory writ is therefore granted and a corrected writ, reading as follows, is ordered served forthwith upon respondent:

"Peremptory Writ of Mandate. "The People of the State of California to C.F. McCullough, as Treasurer of the County of San Benito, State of California, respondent above named:

"You are hereby commanded and required to pay to the State Treasurer of the State of California, the sum of Three Hundred ($300) Dollars, on account of the commitments of the inmates named in the petition on file herein from the County of San Benito to the Sonoma State Home for the period from December 1, 1926, to May 1, 1927; and you are further commanded and required to pay to said State Treasurer the sum of Four Hundred and Sixty ($460) Dollars, on account of the commitments of the inmates named in the petition filed herein from the County of San Benito to the Sonoma State Home for the period of May 1, 1927, to December 1, 1927; and you are required and commanded to make such payments at the time of the next settlement of the County Treasurer of San Benito County with the State of California pursuant to section 3866, Political Code, of the State of California; and we do also command that you make due return to us before this court how you have executed this writ within twenty (20) days after the date of service hereof.

"Witness the Honorable Joseph S. Koford, Presiding Justice of the District Court of Appeal, First Appellate District, Division Two, at the court room thereof in the City and County of San Francisco in said State, and the seal of said Court. Dated nuncpro tunc as of the 27th day of September, 1928.

"By the order of said Court:

"___________________,

"Clerk of the District Court of Appeal, State of California, in and for the First Appellate District."