Wilkes v. Sievers

CHIPMAN, P.

J.

Mandamus. The court made the following findings of fact and conclusions of law:

Plaintiffs are copartners and defendant Sievers is city auditor of the city of Stockton, whose duty it is to draw warrants upon the city treasurer for the payment of salaries of all city officials when due and payable; one Bert Harbin was the duly elected and qualified police clerk of said city and became indebted to plaintiffs for the common necessaries of life in the sum of $126.80, for which amount plaintiffs duly recovered judgment in the justice’s court on July 30, 1907, and said judgment is in effect and is final; the salary of said police clerk was the sum of $1,104 a year, payable $92 per month on the first day of each month for the previous month, under the charter of said city, and on August 1, 1907, there was due said Harbin, for salary as such police clerk, the sum of $92 for the month of July, which he attempted to assign to one Williamson, by the following document: “Stockton, Cal., July, 1907. For value received, I hereby transfer and assign my claim against the City of Stockton, California, amounting to $92.00, to H. E. Williamson, and hereby authorize the City Treasurer to pay the same to him as assignee.

[661]

B. Harbin, ’ ’ and said alleged assignment was filed by said Williamson with the city auditor on or before July 30, 1907; on August 1, 1907, and while there was due and unpaid and payable to said Harbin, his salary as aforesaid, plaintiffs filed with said auditor a transcript of said judgment, duly authenticated, with an affidavit as provided in section 710 of the Code of Civil Procedure, claiming the right to avail themselves of the provisions of said section, whereupon it became the duty of said auditor to draw a warrant for the sum due said Harbin as aforesaid, in favor of the justice of the-peace in whose" court said judgment was rendered, or to pay said sum to the said justice’s court, but that said auditor failed, neglected and refused, and still fails and refuses so to do. It is further found that said salary “was nonassignable and could not be assigned and said alleged assignment is contrary to law and was and is void as against public policy”; that said assignment was for the salary of said Harbin for the month of July, 1907, and was and is the only assignment or attempted assignment made by him to said Williamson; that plaintiffs are beneficially interested in the drawing of said warrant in favor of said justice court, and have no plain, speedy and adequate remedy at law, and that plaintiffs are entitled to a peremptory writ of