101 Cal. 265, 19281, McConoughey v. Jackson

Docket Nº:19281
Citation:101 Cal. 265, 35 P. 863
Opinion Judge:SEARLS, Judge
Party Name:O. H. McCONOUGHEY, Respondent, v. W. H. JACKSON, Clerk, etc., Appellant
Attorney:J. S. Callen, Gibson & Titus, and Callen & Neale, for Appellant. A. M. McConoughey, for Respondent.
Judge Panel:JUDGES: Searls, C. Vanclief, C., and Haynes, C., concurred. Fitzgerald, J., De Haven, J., McFarland, J.
Case Date:February 07, 1894
Court:Supreme Court of California
 
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Page 265

101 Cal. 265

35 P. 863

O. H. McCONOUGHEY, Respondent,

v.

W. H. JACKSON, Clerk, etc., Appellant

No. 19281

Supreme Court of California

February 7, 1894

Department Two

Appeal from a judgment of the Superior Court of San Diego County.

COUNSEL:

J. S. Callen, Gibson & Titus, and Callen & Neale, for Appellant.

A. M. McConoughey, for Respondent.

JUDGES: Searls, C. Vanclief, C., and Haynes, C., concurred. Fitzgerald, J., De Haven, J., McFarland, J.

OPINION

SEARLS, Judge

Page 266

[35 P. 864] The city of Coronado is a city of the sixth class. M. R. Vanderkloot was president of the board of trustees, and W. H. Jackson was clerk of said city.

In April, 1892, the petitioner filed a claim in writing with the board of trustees for five hundred dollars

Page 267

on account of expenses incurred by him in procuring, at the request of said city, through the board of trustees thereof, counsel and legal services for said city.

The bill was approved by the board of trustees, and ordered paid, and a warrant on the city treasurer payable to petitioner for the same was ordered. Vanderkloot and Jackson, the clerk, refused to draw, sign, or countersign the warrant.

There was sufficient money in the treasury to pay said warrant. Upon this showing, on petition, the superior court, on the eighth day of February, 1893, issued an alternative writ of mandate to the president and clerk, requiring the president to draw and sign the warrant and the clerk to countersign and deliver said warrant, or to show cause, etc.

The defendants appeared and demurred to the petition, which demurrer was overruled by the court, whereupon M. R. Vanderkloot, the president of the board, drew and signed the warrant and made default herein.

Defendant Jackson filed an answer, and subsequently an amended answer, to which a demurrer was interposed, and sustained by the court.

Defendant thereupon declined to amend, and a peremptory writ of mandate issued from which he appeals.

The amended answer, for cause why the writ should not issue:

1. Denied that the city was indebted to the petitioner.

2. Averred, upon information and belief, that there was not sufficient available money in the treasury that could be legally appropriated to its payment.

3. Set up the fact that on the 2d of May, 1892, the board of trustees repealed and rescinded the allowance of the claim and order to draw the warrant.

4. Alleged that plaintiff was an officer of the city, and interested in the claim.

5. That the matter is still under consideration by the board of trustees, and that since the pendency of this action, and on the 30th of January, 1893, the board of

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trustees determined the warrant had been ordered drawn through mistake, inadvertence, and misapprehension, rescinded the former action, and ordered that the warrant drawn and signed by the president be canceled, annulled, etc.

The affidavit, which in proceedings of this character stands as a complaint, is lacking in preciseness of detail and fullness of statement, but was still sufficient as against the general demurrer interposed to its sufficiency. In addition to the merely formal parts of the pleading, it in fact and effect avers an indebtedness of five hundred dollars on the part of the city to petitioner for expenses by him incurred in procuring counsel and legal services for the former, at its order and request by its board of trustees; and being so indebted, the board ordered his bill and written demand therefor paid, and ordered a warrant drawn in his favor for the amount, etc., which the president and clerk refused to draw and countersign; that there was money in the treasury to pay it, etc.

These are the essential facts giving to petitioner a right to the writ, and...

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