82 P. 1106 | Cal. Ct. App. | 1905
Lead Opinion
The plaintiffs, as executors of the last will and testament of Miranda W. Lux, deceased, presented to the county clerk of the city and county of San Francisco an inventory and appraisement of the estate of their testatrix on July 31, 1895, and requested him to file the same. The clerk refused to receive or file the document unless the plaintiffs would first pay to him the sum of $770 as a fee therefor. This demand was made by reason of the provisions of section 163 of the act entitled: "An act to establish a uniform system of county and township governments," approved March 24, 1893. (Stats. 1893, p. 389, c. 234.) The plaintiffs protested against the said demand, claiming the right to have the inventory and appraisement filed by him without the payment of any fee in addition to what they had already paid; but, notwithstanding said protest, the clerk refused to receive or file the same or permit it to be filed except upon the prepayment of said sum of money. By reason of such refusal, and in order to enable them to continue in the exercise of their official duties as such executors, the plaintiffs thereupon paid said fee to the clerk, and it was by him paid into the city and county treasury. The act under which the said fee was demanded was thereafter declared invalid (Fatjo v. Pfister,
In the absence of a bill of exceptions containing the evidence before the court, the finding that the payment was involuntary and compulsory must be held to have been sustained by the evidence. It is, however, contended by the appellant that the complaint is insufficient; that the averment therein that the payment was involuntary is only a legal conclusion, and that the facts connected with the payment as set forth in the complaint from which that conclusion is drawn show that the payment was voluntary. Whether the payment was voluntary or involuntary was an ultimate fact to be found by the court from the evidence presented at the trial, and the allegation in the complaint that it was involuntary was an allegation of the ultimate fact upon which the plaintiffs' right of recovery depended; but, as in the case of a cause of action depending upon fraud or negligence, the allegation of this ultimate fact would have been insufficient against a general demurrer unless supported by an averment of the probative facts, and the sufficiency of the complaint is therefore to be determined by a consideration of these probative facts.
It is further contended by the appellant that, inasmuch as the clerk had no authority to demand a fee for filing the document, and the plaintiffs could have compelled him under a writ of mandate to file the same, their payment of the money instead of resorting to an action at law to compel him to receive and file it rendered it a voluntary payment, for the reason that it was made with the full knowledge *115 of its illegality, and was not made for the purpose of protecting their property or person, or releasing the same from any custody or restraint. When an illegal demand is made against the person or property of an individual which can be enforced only by a judgment therefor in an action at law wherein he can contest its legality, or if made under a threatened sale of his property, and he can contest the validity of the proceedings whenever an attempt is made to disturb his possession, and he pays the claim or demand rather than be subjected to such action or to have his property sold, such payment is voluntary, to the extent that it cannot be recovered in an action therefor. If, however, an illegal demand is made by any person holding an official position, with the color of authority to enforce the same, and such demand operates as a restraint upon the exercise of an undoubted right or privilege, and in its enforcement there is no opportunity of contesting its validity, a payment of the demand in order to remove such restraint is compulsory, and not voluntary. The distinction to be observed is between a payment made for the purpose of protecting or securing the present enjoyment of a right to which the person is immediately entitled, and a payment made to prevent a threatened disturbance of such right where there is no authority to interfere with its enjoyment until the right of the threatening party shall be established in a judicial proceeding in which the rights of the respective parties may be presented and determined. In the latter case, a payment to avoid such threatened contest is regarded as voluntary, while in the former case it is compulsory.
The exaction by a clerk or other official, against the protest of a party, of illegal fees as a condition for filing a document in his office which the party presenting it is entitled to have filed by him renders the payment of such fees compulsory, and it is none the less compulsory that the party could have procured a writ of mandate compelling him to file the document without paying the fees demanded. His right to file the document was immediate, and the payment of the fee under the alternative of bringing such action and incurring the expense and delay thereof is not voluntary. (Steele v.Williams, 8 Ex. 625, [20 Eng. L. Eq. 319]; Lum v. McCarty,
None of the cases cited on behalf of the appellant present the question here involved. In Bucknall v. Story,
It must be held, therefore, that the payment alleged to have been made by the plaintiffs was not voluntary, and that the complaint states a cause of action.
The judgment is affirmed.
Cooper, J., and Hall, J., concurred.
A petition for a modification of the judgment was granted by the district court of appeal on November 28, 1905, and the following opinion was then rendered:
Addendum
After the opinion herein was filed, the appellant presented a petition for a modification of the judgment therein ordered by limiting the affirmance of the judgment appealed from to that portion which awards to the plaintiffs a recovery of the money originally paid to the clerk, but without any interest thereon; and in support of this petition has called our attention to the cases of Savings etc. Soc. v. San Francisco,
At the hearing of the appeal herein the argument on behalf of the appellant was confined to the question of its liability to the respondents, and neither in the oral argument nor in the printed brief on behalf of the appellant was our attention called to the question presented by the above petition, or to the form of the judgment under consideration, and in their reply to the petition the respondents urge that *119
for this reason the petition should not be granted. In support of their position they have cited several cases in which the supreme court has held that the appellant, by his failure to present in his opening brief, or point out in the record, grounds which may exist for the reversal of the judgment, will be deemed to have waived such error and, if presented for the first time in his closing brief, they will not be considered by the court. This, however, is not a right which may be invoked by the respondent, but, as was said in Webber v. Clarke,
While a court might hold that, by failing to point out an error involving the decision or investigation of a controverted question of law, an appellant had thereby waived the right to subsequently urge such error, it does not follow that, if it should be brought to the attention of the court before its judgment had become final, that upon the face of the record the judgment appealed from was in contravention of some statute or of a well-established rule of law, it would not be justified in setting its judgment aside, even though the appellant had not pointed out the objection, or its attention had not been called to the matter until after it had filed an opinion for affirming the judgment. Courts are established for the purpose of protecting individuals in the enjoyment of their rights and vindicating them against wrongs; and it should be the aim of an appellate court to prevent the judgments brought before it for review from violating any statute or rule of law defining or establishing those rights. In their answer to said petition the respondents do not controvert the proposition of the appellant that the judgment of the superior court is violative of this rule as defined in the above-named decisions of the supreme court; and we cannot assume that they would desire us to affirm a judgment which they concede to be in contravention of the law. Under these principles the petition must be granted.
The judgment heretofore entered herein is set aside, and instead of that the following judgment will be entered: The superior court is directed to set aside its judgment heretofore rendered, and to enter judgment in favor of the plaintiffs *120 and against the defendant, as of September 16, 1904 — the date of its decision — for the sum of $770, said judgment to bear interest from that date at the rate of seven per cent per annum.
Cooper, J., and Hall, J., concurred.