Byers v. Smith

[211]

THE COURT.

The petitioners in this ease seek the issuance of the writ of mandate compelling respondent to endorse upon the payroll of the city of San Diego that petitioners have been elected and appointed to perform services and did perform services for the city during the period from May 3 to May 15, 1935, and that their salary for such services is at the rate claimed in their petition.

The controversy arises out of the following facts: Byers was elected city attorney in 1932. ■ The other petitioners are his assistant and deputies. On February 25, 1935, an accusation b}r the grand jury was filed charging the city attorney with misconduct in office. The accused entered his denial and on April 24, 1935, a jury returned its verdict against him. There followed a motion for a new trial, a denial thereof, and on May 3, 1935, an appeal to the District Court of Appeal from the judgment removing him from office, entered upon and pursuant to the jury’s verdict. On May 4th the trial judge signed a writ of probable cause, and thereafter and on May 23, 1935, the District Court of Appeal issued its order staying the execution of the judgment and all proceedings thereunder until the further order of the court.

In order that we may fully understand the contentions of respondent it is well at this time to set forth section 770 of the Penal Code, which reads as follows:

“Appeal, how taken. Defendant to be suspended and vacancy filled. From a judgment or decree of removal from office under any provision of this chapter, an appeal may be taken to the supreme court in the same manner as from a judgment in a civil action but until such judgment is reversed, the defendant is suspended from office after thirty days from the entry of the judgment, unless within such thirty days there shall be filed in the office of the clerk of the court in which the conviction was had, a certificate of a judge of the superior court that in his opinion there is probable cause for the appeal. If a bill of exceptions is not settled in time to be used upon an application for such a certificate or within twenty days after such judgment is entered, the error relied upon may be presented to such judge in any manner satisfactory to such judge. If no such certificate be filed within thirty days the office must pending the appeal be filled as in case of a vacancy. Appeals taken under this section