Appeal
from Circuit Court, Clatsop County; H. K. Zimmerman, Judge.
Proceeding
by W. C. Crawley, receiver of the Astoria National Bank, for
writ of mandamus to be directed to Clara C. Munson, as
District Clerk of School District No. 30, Clatsop County.
From an adverse judgment, plaintiff appeals. Affirmed, with
permission to appellant to apply for amendment of writ.
On
November 23, 1928, plaintiff and appellant filed in the
circuit court of Clatsop county his verified petition for an
alternative writ of mandamus, and on the same day the writ
was issued requiring the defendant to show cause as of
December 7, 1928. On January 28, 1929, an order was made
allowing the original petition and alternative writ to be
amended. The amended writ, omitting title and verification
and formal allegations as to qualifications of plaintiff to
maintain this action is as follows:
"The
State of Oregon to Clara C. Munson, District Clerk of
School District No. 30, of Clatsop County, Oregon
Greeting:
"Whereas
by the verified petition of W. C. Crawley, as Receiver of
the Astoria National Bank, a corporation insolvent
plaintiff, it appears to this court as follows: * * *
"That
School District No. 30 of Clatsop County, state of Oregon
was and is during all times herein mentioned a duly
organized and existing municipal corporation and school
district of the second class, under and by virtue of the
laws of the state of Oregon.
"That
the defendant Clara C. Munson was and is during all times
herein mentioned, the duly elected, qualified, and acting
district school clerk of said School District No. 30 of
Clatsop County, and as such, charged with the payment of
all warrants so issued by said school district, in the
order in which the same are indorsed, and upon funds
becoming available for the payment of the same.
"That
heretofore, and on November 5, 1926, said School District
No. 30 of Clatsop County issued, or caused to be issued, by
due and proper authority, in compliance with the laws of
the state of Oregon governing school districts, its warrant
in words and figures as follows:
"
'School District No. 30, Clatsop County.
"
'$1.27.
"
'To Clara C. Munson, Clerk of School District No. 30
Clatsop County, Oregon:
"
'Pay to Kilham Stationery & Printing Co., or order, the
sum of One 27-100 Dollars for Paper H. S. out of any money in
your hands belonging to said district and not otherwise
appropriated.
"
'No. 3448.
"
'Attest:
"
'Clara C. Munson, District Clerk.
"
'Edgar Deane, Chairman Board Directors.
"
'Payable at Astoria National Bank.'
"Indorsed
on back:
"
'Presented for payment this 5th day of November, 1926,
and not paid for want of funds.
"
'Clara C. Munson, District Clerk.'
"That
the aforesaid warrant was, after its issuance, duly delivered
to said Kilham Stationery & Printing Company, and was
thereafter duly sold, transferred and delivered to the said
Astoria National Bank for value, and said Astoria National
Bank and this plaintiff, as receiver thereof, are now and
have been since the indorsement thereof, the owners of and in
possession of same.
"That
said last mentioned warrant was duly presented to said
defendant for payment on November 5, 1926, and was on said
last mentioned date duly indorsed by said defendant, as said
clerk: 'Not paid for want of funds.'
"That
there was also issued, or caused to be issued by said School
District No. 30, various and sundry of its warrants at
various other times to various other persons and parties, and
for various amounts, all of which warrants are in the
identical form and language as set forth in the warrant as
alleged in Paragraph V of said petition, and hereinbefore set
forth, save and except the date thereof, the amount thereof,
the payee thereof, the number thereof, and purpose for which
issued, and that for the sake of brevity there is herein
listed all such warrants now held and owned by the plaintiff
and petitioner herein, setting forth the date of issuance,
amount thereof, payee thereof, and the date presented to
defendant and indorsed: 'Not paid for want of funds,'
as follows:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Date. Amount. Name of Date Presented for Payment and All
Indorsed Payee. "Not Paid for Want of Funds" by
Defendant as Clerk of Said District. May 13, $175.00 A.S. May
13, '27. '27. Propst.
"(Note.--In
such amended alternative writ of mandamus there is then
listed 227 separate warrants, totaling $19,524.23, all as
follows, but omitted from this abstract of record for the
sake of brevity.)
"That
all of the above listed and referred to warrants were
heretofore, by said School District No. 30, delivered to the
respective payees thereof, and that said respective payees
thereof, for value received, sold, transferred, and assigned
said warrants to said Astoria National Bank, and said Astoria
National Bank, and this plaintiff, as receiver thereof, are
now and ever since have been the owners and holders thereof
and in possession thereof, and that each of said listed and
above referred to warrants was duly presented to said
defendant as clerk of said School District No. 30, and
indorsed: 'Not paid for want of funds,' by said
defendant as said school district clerk on the date or times
above listed and set opposite each thereof.
"That
this plaintiff has made due and several demands upon said
defendant as said clerk of said school district, and upon
said school district, to make payment of said warrants, and
that said clerk and said school district has failed and
refused to pay the same, or any part thereof.
"That
section 5253 of Oregon Laws is as follows:
"
'§ 5253. Application of Available Funds on Unpaid
School Warrants. When any warrants, issued by any
school district of this state have been or hereafter may be
indorsed "not paid for want of funds," and funds
shall thereafter become available for the payment of the
same, such funds shall be applied in payment of such
warrants in the order in which they were so indorsed.'
"That
monies and funds belonging to School District No. 30 of
Clatsop County, Oregon, have become available and into the
hands and into the possession of said defendant since the
respective dates of the indorsement on said warrants:
'Not paid for want of funds,' with which to pay
said warrants, and the whole thereof, or at least the
greater portion thereof, but that said defendant has failed
and refused to apply said funds to the payment of said
warrants, and that said defendant, notwithstanding said
funds were so available, has paid, or caused to be paid
warrants issued by said school district and indorsed
subsequent and after the dates and times of the
indorsements so affixed to said above listed warrants so
owned and held by said plaintiff and petitioner herein as
aforesaid, and/or has made direct payment without the
issuance of warrants, of funds which by right should have
been available to the payment of the said warrants now held
and owned by this plaintiff, all contrary to the laws of
the state of Oregon.
"That
other warrants of said school district may be outstanding
and unpaid which bear an indorsement 'Not paid for want
of funds' prior in date as those of plaintiff herein
set forth.
"That
plaintiff has no plain, speedy, or adequate remedy at law.
"Now,
Therefore, we, being willing that full and speedy justice
should be done in the premises, do command you, the said
Clara C. Munson, as district clerk of School District No.
30, that immediately after the receipt of this writ, you
observe and carry out the provisions of section 5253,
Oregon Laws, and particularly that you use and apply all
the available funds and monies in your hands, in your
possession, or under your custody and control as clerk of
said School District No. 30, to the payment of outstanding
warrants of said school district in the order of their
indorsement, and that you forthwith cease to make payment
of any warrants so issued by the said School District No.
30 from funds available which shall bear indorsement or
does bear indorsement 'not paid for want of funds'
subsequent to and after the respective dates of indorsement
on all said above referred to and listed warrants now owned
and held by plaintiff herein, and that you further, as such
school clerk, cease making payment direct from funds
available which by right should and ought to be applied to
the payment of warrants of said district indorsed 'not
paid for want of funds,' or that you appear before this
court in the court room thereof in the courthouse at
Astoria, Oregon, on the 7th day of December, 1928, at the
hour of 10:00 o'clock in the forenoon of said day, and
show cause why you have not done so, and that you then and
there return this writ with your certificate annexed of
having done as commanded, or the cause of your omission
thereof.
"Witness
the Honorable J. A. Eakin, Judge of the Circuit Court of
the State of Oregon for the County of Clatsop, and the seal
of said court affixed by the clerk thereof, at Astoria,
Oregon, this 23d day of November, 1928. J. C. Clinton,
Clerk of the Circuit Court of the State of Oregon for the...
