Trow v. Moody

JAMES, J.

Mandate to require appellant as auditor of the city of San Diego to issue his warrant in favor of the justice’s court for San Diego township in the amount of $63.69. Judgment^was in favor of petitioners after demurrer to the answer had been sustained. An appeal taken from that judgment is presented upon the judgment-roll.

By the admitted allegations of the petition it was shown that one George T. Rogers during the month of November, 1914, was the chief deputy treasurer of the city of San Diego, receiving as compensation for his services a monthly salary of one hundred and sixty dollars; that a judgment was obtained against him and other defendants in the justice’s court of San Diego township, and that a transcript thereof was filed with appellant auditor on the twenty-eighth day of November, 1914, together with an affidavit made on behalf of the plaintiffs in that action showing that there was then due and unpaid on account of the judgment $63.69, and giving notice to the auditor that the plaintiffs desired to have the advantage of the provisions of section 710 of the Code of Civil Procedure. It was further shown by the petition that the said Rogers had

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served as such deputy city treasurer for the whole of the month of November, 1914. The answer of appellant admitted all of these facts, and alleged further by way of defense that on the same day that the transcript of the justice’s judgment was served, but prior to the time when it was so served upon appellant, there had been served an instrument whereby the said Rogers and his wife assigned to H. M. Strong all of that portion of the salary earned by Rogers from the first to the twenty-eighth day of November, 1914. The trial judge determined that the fact of the making and filing of the assignment did not affect the rights of respondents here to intercept money owing to Rogers at the time the transcript of the justice’s judgment was filed with appellant. Prior to the enactment of section 710 of the Code of Civil Procedure, it had uniformly been held that the salary of a public officer was not subject to the process of attachment or garnishment. The enactment of the statute was a valid exercise of legislative power and gave direct authority for the action taken by the respondents herein.

(Ruperich