First National Bank of Chico v. Tyler

BURNETT, J.

The appeal is from a judgment directing the issuance of a peremptory writ of mandate. The question for determination grows out of the order of the court overruling defendants’ demurrer to the petition. In addition to some formal matters the essential admitted facts are as follows: One John Gray performed labor and services for the said county of Butte on certain days at the rate of $3.50 per day, amounting to thirty-five dollars; that he thereafter prepared a written claim for the same against the said county in due form and properly verified and thereafter, on November 25, 1911, sold and assigned the said claim to one W. H. Gray for a valuable consideration, and the latter, on November 29th, sold and assigned the same to petitioner; on certain other days similar services were performed by the said John Gray, amounting in value

to

the sum of $19.25, for which a claim was properly prepared and verified, and the said John Gray assigned this to the said W. H. Gray, on said November 29th, and by the latter, the same day, it was assigned to peti

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tioner. Similar services were performed by one Bert Parrish and two separate claims against the county were prepared by him. The first of these claims was assigned, on November 6th, to one Rod Hamlin who, on the same day, assigned it to petitioner. The second claim was assigned to Murphy and Hamlin who, on November 27th, assigned it to petitioner. These several claims were duly assigned by petitioner to the First National Bank of Oroville for the purpose of collection and of presenting said claims to the board of supervisors of said county and of receiving the warrants therefor to be drawn by said auditor. The various assignments appeared in proper form on the respective claims and they were filed with the clerk of said board and each of said claims was allowed by said board of supervisors at a regular meeting -on December 6, 1911, and the full amount was ordered to be paid out of the funds of a certain road district. Thereafter, the clerk of the board made the proper indorsement of the allowance on each of said claims and delivered the same to said auditor, not later than December 15th, following. On November 28th, said A. G. Simpson, as executor as aforesaid, caused to be filed with the said auditor a certified transcript in proper form of a judgment entered in the justice court of Chico township, said county, against the said John Gray in favor of said executor for the sum of $188.10, and on the same day a similar transcript of a similar judgment against said Parrish for the sum of $78.27. The First National Bank of Oroville made the proper demand upon said auditor for the warrants but he refused to draw any of them in its favor but threatened to draw them in favor of the said justice of the peace by,reason of said transcripts of judgments having been filed) with him. None of the said assignees had any notice of the filing of said transcripts of judgment until said claims were in the hands of the auditor and he had refused to draw his warrants as aforesaid. It was admitted in the lower court that after the issuance of the alternative writ the auditor drew and delivered the warrants on the said Parrish claims in accordance with the prayer of the petition. They are, therefore, not included in the peremptory writ directing the auditor to draw warrants in favor of said First National Bank of Oroville. Hence we are concerned only with the order commanding the auditor “forthwith to draw his warrants on