Paton v. Teeter

WARD, J.

This is an appeal from a judgment sustaining a general demurrer, without leave to amend, to a petition for a writ of mandate to compel a county auditor to draw his warrant for a specified sum as a refund of deposited bail. The question involved is whether a writ of mandate is an appropriate remedy. The facts applicable to this petition will be found in

Paton

v.

Superior Court,

Civil No. 11187

(ante,

p. 475 [99 Pac. (2d) 698]), filed this date.

[479]

The. point suggested by this court after the first oral argument, and considered upon the second oral argument and subsequently in briefs, is, assuming the order, directing that an amount be retained out of a bail deposit as payment of a fine, must be annulled before relief is sought, would an order commanding the county auditor to draw his warrant for the return of the money be proper in the absence from the record of any evidence that there had been a compliance with section 4075 of the Political Code, which provides: “All claims against any county or against any public officer in his official capacity payable out of any public fund under the control of the board of supervisors, whether such claim be founded upon contract, express or implied, or upon any act or omission of the county or any officer or employee thereof, or of any district or public entity the funds of which are controlled by the board of supervisors, or of any officer or employee of any such district or public entity, shall be presented to the board of supervisors as herein provided before any suit may be brought on any such claim, and no suit shall be brought on any such claim until said claim has been presented as herein provided and rejected in whole or in part.”

The money involved in this proceeding is the sum of $1,000 which was ordered retained, from an amount of $10,000 bail deposited, and applied to the payment of fines imposed on four criminal defendants.

The statutory provision for the application of a cash deposit in satisfaction of a fine is section 1297 of the Penal Code. Assuming that the orders providing that part of the bail be applied in satisfaction of the fines imposed were in excess of the jurisdiction of the court, nevertheless the orders resulted in the deposit, without the direct jurisdiction of the court and within the control of the board of supervisors, of the disputed amount.