162 P. 911 | Cal. Ct. App. | 1916
Lead Opinion
These appeals, one from the judgment and the other from an order of court denying defendant's motion to vacate the judgment entered and render a different judgment upon the findings, were taken by Alfred Davis, as the then city clerk and auditor of the city of Santa Barbara, for whom, upon suggestion of his death, A. C. Holmberg, his successor in office, has, by orders made pursuant to rule XVI of the supreme court, [160 Cal. li, 119 Pac. xii], been substituted as appellant.
The facts upon which this proceeding for the issuance of a writ of mandate to be directed to the city clerk and auditor of the city of Santa Barbara is based are set forth in an opinion of the supreme court filed in the case of Ott Hardware Co. v.Davis,
It appears from the findings that on May 25, 1908, plaintiff recovered judgment against one Warren W. Clark; that on December 7, 1909, said Warren W. Clark recovered judgment against one Robert Beyrle in the sum of $705.26, by the provisions of which said judgment the city of Santa Barbara, made a defendant in said action, was adjudged to pay the amount thereof to said Warren W. Clark, or to Canfield Starbuck, his attorneys, "out of the amount due from said defendant city of Santa Barbara to said defendant Robert Beyrle for the construction in part of the section numbered sixteen (16) of the tunnel now or lately in course of construction for said defendant city of Santa Barbara through the Santa Ynez range of mountains"; that after the entry of said last-mentioned judgment in favor of Clark against Robert Beyrle, to be paid out of the moneys due from the city of Santa Barbara to the defendant in said action, and before any satisfaction thereof or compliance therewith by said city of Santa Barbara, to wit, on December 8, 1909, the plaintiff herein, Ott Hardware Company, served upon and filed with the city clerk and city auditor of Santa Barbara a duly authenticated transcript of said judgment so obtained by plaintiff against said Clark, wherein it was stated that said plaintiff desired to avail itself of the provisions of section 710 of the Code of Civil Procedure, and demanded from said city clerk and city auditor a warrant on the city treasurer for said sum of $705.26, pursuant to the provisions of said section 710, the delivery of which was refused; that after said action on the part of plaintiff and refusal by said city clerk and auditor to deliver the warrant to plaintiff as demanded, Canfield Starbuck presented to the council of said city the demand in writing of Warren W. Clark for payment of said judgment so obtained against Beyrle and to be paid out of any indebtedness due from said city of Santa Barbara to said Beyrle, which said demand was approved by said city council and delivered to the city clerk and auditor, who thereupon drew his warrant for said sum upon the city treasurer of said city, payable to Canfield Starbuck, "out of the waterworks extension fund of the city," the amount of which said warrant was duly paid by said city treasurer, upon whom it was drawn, to said Canfield Starbuck by whom, pursuant to an agreement with Clark, it was applied in liquidation of indebtedness due from Clark to his said attorneys. *232
The prayer of the complaint was that the auditor be commanded "to draw his warrant, properly signed and made out, in favor of or to pay into the superior court of the county of Santa Barbara, state of California, for the sum and in the sum of $705.26, . . . to be paid on and credited on said judgment in favor of the plaintiff herein and against said Warren W. Clark, . . . in the cause designated in said transcript of judgment filed with defendant on the eighth day of December, 1909, by plaintiff herein." The judgment from which this appeal is prosecuted, following the prayer of the complaint, ordered, adjudged, and decreed that defendant, as city clerk and city auditor, "draw his warrant as such city clerk and city auditor of said city, properly signed and made out, in favor of the superior court of the state of California in and for the county of Santa Barbara, state of California, for the sum of $705.26."
While counsel for appellant concede the findings considered with the law of the case as established by the decision of the supreme court in Ott Hardware Co. v. Davis, entitle plaintiff to the issuance of a warrant for the amount in controversy, they attack the judgment upon the ground that the effect of filing with the city auditor the transcript of the judgment obtained by plaintiff against Clark, was to impound money due from the city to Clark out of a separate or particular fund, to wit, "out of the amount due from said defendant city of Santa Barbara to said defendant Robert Beyrle for the construction in part of the section numbered sixteen (16) of the tunnel," instead of which, however, the judgment orders a warrant payable, not from the amount due Beyrle for the construction of said tunnel, but from the general funds of the city. This particular point received little or no consideration in the case of Ott Hardware Co. v. Davis,
The judgment and order are affirmed.
Conrey, P. J., concurred.
Concurrence Opinion
I concur in the judgment. I do this reluctantly, and only because our supreme court in Ott Hardware Co. v. Davis,
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 29, 1917. *235