65 P. 741 | Cal. | 1901
Appeal from a judgment dismissing the action. The suit was brought against the defendant Madden, county treasurer, and his sureties, to recover the sum of $34,825.35, money of the state and county, fraudulently converted by him. Judgment was entered by stipulation against the sureties, — excepting one, as to whom the action was dismissed, — and, amongst others, against McGahey, now intervener. The defendant Madden had not been personally served, and the suit was continued as to him. The complaint in intervention of McGahey was filed January 6, 1899, — about six months after the judgment against him and the other sureties. The action was dismissed, on the motion of *348 the intervener, on the ground that the suit was commenced by the district attorney without authority of the board of supervisors, or other board or official having power to authorize the suit, and without authority of law.
The last proposition is contested by the appellant's counsel, who claim that, under the law, the district attorney is authorized, by virtue of his office, to bring suits of this character. The ruling of the court to the contrary was based on the supposed authority of the decision in Ventura County v. Clay,
It appears without controversy that the action of the district attorney in bringing the suit was subsequently ratified and approved by the board of supervisors, and also by the grand jury, which, under section
We advise that the judgment be reversed and the cause remanded for further proceedings.
Cooper, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment is reversed and the cause remanded for further proceedings.
*349Henshaw, J., McFarland, J., Temple, J.