Newbury v. Civil Service Commission

California Court of Appeal Dec 31, 1940 No. Civ. 12581Published

Before: McComb

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Holding. The court held that the petitioner's claim for a writ of mandate and damages was barred by laches due to his unreasonable delay in asserting his rights, and that a money judgment for salary cannot be granted in a mandate proceeding when the writ itself is denied.

Issues

Was the conclusion of law that the petitioner's claim was barred by laches supported by the findings of fact?
Was the petitioner entitled to a judgment for damages if he was not entitled to a writ of mandate?

Disposition. affirmed

Quotations verified verbatim against the opinion

“That petitioner’s petition for damages or for salary and for appointment to a position in the classified service of the City of Los Angeles as Senior Accountant is barred by laches.”

“The law is established in California that a money judgment will not be rendered in a mandate proceeding when petitioner is denied an order directing that he be placed in the position he seeks”

McCOMB, J.

Petitioner appeals from an order of the trial court denying his motion pursuant to the provisions of subsection 1, section 663 of the Code of Civil Procedure to vacate and set aside the judgment of the trial court, denying his application for a writ of mandate to have respondents appoint him senior accountant in the office of the City Controller of the City of Los Angeles, and to enter a judgment in accordance with the prayer of his petition, on the ground that the judgment and conclusions of law are not consistent with or supported by the trial court’s findings of fact.

Since this appeal is from an order made pursuant to the provisions of section 663 of the Code of Civil Procedure, we are confined in our review to a determination of whether the conclusions of law and judgment are consistent with and supported by the findings of fact

(Budd

Hough,

100 Cal. App. 103, 106 [279 Pac. 1074];

Dahlberg

Girsch,

157 Cal. 324, 326 [107 Pac. 616]).

The essential facts are:

Petitioner filed an application for a writ of mandate requiring respondents to appoint him senior accountant in the office of the City Controller of the City of Los Angeles and also for the amount of salary which he would have received had he been appointed such accountant at the time he was entitled to the position.

The trial court found that on October 11, 1935, petitioner was senior accountant in the classified civil service of the city of Los Angeles and that his name was the only one upon the reserve list of the Harbor Department for senior accountant; that on or about October 25, 1935, a vacancy occurred in the position of senior accountant in the office of the City Controller, to which vacancy, under the rules of the Civil Service Commission, petitioner was entitled to be appointed, but that in lieu thereof another person who was not qualified or eligible therefor was appointed; that petitioner knew of the vacancy in the Controller’s office in the first part of November, 1935, but did not make any investigation or inquiry at the office of the Civil Service Commis

[260]

Newbury v. Civil Service Commission

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