46 P. 299 | Cal. | 1896
Writ of mandate to compel the defendant, as treasurer of the county of Glenn, to pay a warrant for $811.36, drawn upon the said treasurer by the county auditor, and payable to petitioner. Defendant had judgment in the court below, from which judgment plaintiff appeals.
At the trial the plaintiff or relator, read to the court his petition and the answer thereto, and rested his case. Thereupon defendant declined to introduce any evidence, and the cause was submitted to the court, and thereafter it filed written findings, specifying that the “contract alleged and set out in the answer of the defendant, and alleged as the contract upon which the claim of the plaintiff and relator is based, is ultra vires and void. ’ ’ The question involved in the case is this: Under the pleadings, upon whom did the burden of proof rest? Had the plaintiff moved the court for judgment upon the pleadings, he would, in effect, have admitted that all of the averments of the answer were true: Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 405; Fleming v. Wells, 65 Cal. 339, 4 Pac. 197; People v. Johnson, 95 Cal. 474, 31 Pac. 611; McGowan v. Ford, 107 Cal. 177, 40 Pac. 231. He did
In McGowan v. Ford, 107 Cal. 177, 40 Pac. 231, it was held, in substance, that where it is averred in the petition, and not denied, that the board of supervisors allowed the claim, and ordered a warrant drawn therefor, and that a warrant was regularly drawn by the auditor, and delivered to the petitioner, it must be presumed that official duty in allowing and issuing the warrant was regularly performed, and the burden of proof is upon the treasurer to show that he was justified in refusing payment, and it does not rest upon the plaintiff to show, by affirmative proof, that the board of supervisors had jurisdiction to issue the warrant, merely because the averments of the answer show that the board of supervisors had no jurisdiction to allow the claim. McFarland v. McCowen, 98 Cal. 329, 33 Pac. 113, and Colusa Co. v. De Jarnett, 55 Cal. 375, are to like effect. This doctrine is subject to the exception that, if it appears on the face of the claim that it is one over wdiich the board of supervisors had no jurisdiction, or that they acted in excess of their jurisdiction, the auditor may refuse to draw his warrant in pay
We concur: Britt, C.; Belcher, C.
For the reasons given in the foregoing opinion the judgment is reversed and a rehearing had.