Ott Hardware Co. v. Holmberg

SHAW, J.

These appeals, one from the judgment and the other from an order of court denying defendant’s motion to vacate the judgment entered and render a different judgment upon the findings, were taken by Alfred Davis, as the then city clerk and auditor of the city of Santa Barbara, for whom, upon suggestion of his death, A. C. Holmberg, his successor in office, has, by orders made pursuant to rule XVI of the supreme court, [160 Cal. li, 119 Pac. xii], been substituted as appellant.

The facts upon which this proceeding for the issuance of a writ of mandate to be directed to the city clerk and auditor of the city of Santa Barbara is based are set forth in an opinion of the supreme court filed in the ease of

Ott Hardware Co.

v.

Davis,

165 Cal. 795, [134 Pac 973], wherein on a former appeal prosecuted by plaintiff the court reversed a judgment entered in favor of defendant. This appeal is from the judgment claimed by respondent to have been entered in accordance with the opinion of the supreme court upon the going down of the

remittitur,

whereas appellant, as grounds for a reversal, insists that, as rendered, it is contrary to the views contained in said opinion and not supported by the findings.

[231]

It appears from the findings that on May 25, 1908, plaintiff recovered judgment against one Warren W. Clark; that on December 7, 1909, said Warren W. Clark recovered judgment against one Robert Beyrle in the sum of $705.26, by the provisions of which said judgment the city of Santa Barbara-, made a defendant in said action, was adjudged to pay the amount thereof to said Warren W. Clark, or to Canfield & Starbuek, his attorneys, “out of the amount due from said defendant city of Santa Barbara to said defendant Robert Beyrle for the construction in part of the section numbered sixteen (16) of the tunnel now or lately in course of construction for said defendant city of Santa Barbara through the Santa Tnez range of mountains”; that after the entry of said last-mentioned judgment in favor of Clark against Robert Beyrle, to be paid out of the moneys due from the city of Santa Barbara to the defendant in said action, and before any satisfaction thereof or compliance therewith by said city of Santa Barbara, to wit, on December 8, 1909, the plaintiff herein, Ott Hardware Company, served upon and filed with the-city clerk and city auditor of Santa Barbara a duly authenticated transcript of said judgment so obtained by plaintiff against said Clark, wherein it was stated that said plaintiff desired to avail itself of the provisions of section 710 of the Code of Civil Procedure, and demanded from said city clerk and city auditor a warrant on the city treasurer for said sum of $705.26, pursuant to the provisions of said section 710, the delivery of which was refused; that after said action on the part .of plaintiff and refusal by said city clerk and auditor to deliver the warrant to plaintiff as demanded, Canfield & Starbuek presented to the. council of said city the demand in writing of Warren W. Clark for payment of said judgment so obtained against Beyrle and to be paid out of any indebtedness due from said city of Santa Barbara to said Beyrle, which said demand was approved by said city council and delivered to the city clerk and auditor, who thereupon drew his warrant for said sum upon the city treasurer of said city, payable to Canfield & Starbuek, “out of the waterworks extension fund of the city,” the amount of which said warrant was duly paid by said city treasurer, upon whom it was drawn, to said Canfield & Starbuek by whom, pursuant to an agreement with Clark, it was applied in liquidation of indebtedness due from Clark to his said attorneys.