McKelley v. Turner

[293]

FINCH, P. J.

This is an original application for a writ of mandate requiring the respondent, as auditor of Lake County, to issue his warrant in favor of petitioner for his salary as sheriff of that county for the month of June, 1928. The only issue of fact raised by the pleadings is whether the petitioner resigned his office as such sheriff on May 17, 1928. A reference was ordered and the referee took evidence and found therefrom that the petitioner did not so resign. Respondent contends that the evidence does not support the finding of the referee.

It appears from the evidence that during the forenoon of May 17, 1928, the board of supervisors of the county made demand upon the petitioner that he resign the office. He refused to do so and engaged an attorney to represent him in the controversy. Later in the day the attorney went to the petitioner’s home and, after much persuasion, induced him to sign a form of resignation which the attorney, of his own volition, had prepared in advance. The attorney thereupon proceeded to the courthouse and filed the paper so signed. Petitioner contends that it was filed without his consent and contrary to his express direction. Relative to what occurred at the time he signed the paper, the petitioner testified: “I said, ‘I am sick but I wiU sign it. . . . Don’t turn it over until tomorrow,’ and he went. I said this, repeating it again, ‘Don’t turn it over until tomorrow,’ and I got to the door just a few minutes after, . . . and I called to Mr. Spurr, he was in the yard, I said, ‘Mr. Spurr, hurry down and tell Howard (the attorney) not to put my resignation in this evening because I don’t want it to go in until tomorrow and see how I feel.’ ... I said, ‘Mr. Spurr, tell Howard not to put it in, I told him not to put it in until tomorrow. I am afraid he will, he seemed to be in an awful hurry. I can’t go any further than this door, rush down and tell him for goodness sake not to put it in today. ’ ’ ’ The attorney testified that, within a few minutes after the written resignation was signed and delivered to him, Mr. Spurr, who is his uncle and an old friend of petitioner and who had accompanied the attorney to petitioner’s residence for the purpose of inducing him to resign, met him at the courthouse and. said: “I just came from Lon’s (petitioner’s) house, and Lon . . . told me to tell you, or ask you not to present the resignation until in the