Ott Hardware Co. v. Holmberg (1918) · DecisionDepot

Ott Hardware Co. v. Holmberg

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Feb 27, 1918 No. Civ. 2494; Civ. 2440Published

Before: James

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Holding. The court held that a mandamus proceeding against a public official in their official capacity does not abate upon the official's death or expiration of term, and that a successor in office may be properly substituted as a party defendant.

Issues

Whether a mandamus action against a city official abates upon the official's death or expiration of term.
Whether a successor in office may be substituted as a party defendant in a pending mandamus proceeding.

Disposition. affirmed

Synopsis

Abatement of Action—Proceeding Against Public Officer—Death of Official.—In view of the provisions of section 386 of the Code of Civil Procedure, a proceeding in mandamus against a city clerk and auditor in his official capacity to enforce payment from the city of money intercepted pursuant t'o section 710 of such code, does not abate upon the death of such official, but may be prosecuted against his successor in office. ■

JAMES, J.

The controversy between the parties hereto having run a prolonged course through the trial and appellate courts, is again here on two appeals, both taken by the defendant. As the questions involved are practically the same in both cases, the appeals may well be considered together. The first appeal, that numbered 2494, is an appeal taken from an order substituting A. C. Holmberg, city clerk and city auditor of the city of Santa Barbara as defendant, in the place and stead of Alfred Davis, the former city clerk and auditor. The second appeal, that numbered 2440, is an appeal taken from an order directing the clerk of the superior court to collect a warrant for a sum of money drawn by the city clerk and auditor and deposited in court to await the result of a former appeal.

In December, 1909, Davis was city clerk and auditor of the city of Santa Barbara, and the city of Santa Barbara was at that time indebted in a considerable sum to Warren W. Clark. The Ott Hardware Company having obtained a judgment in the superior court against Clark, sought to intercept this money due from the city to Clark by having filed with the city clerk and auditor, agreeable to the provisions of section 710 of the Code of Civil Procedure, an authenticated transcript of the judgment. Notwithstanding the filing of this transcript, the city clerk and auditor refused to follow the direction of the statute and draw his warrant payable to the court from which the transcript was issued, but did draw the warrant and delivered the same to Clark, or as directed by him. This proceeding in

mandamus

was then brought to compel Davis to return the warrant into court as the statute required him to do. The lower court held adversely to the petitioner’s contention there, the matter was appealed to this court, and, the justices not agreeing, the cause was certified to the supreme court, which court later rendered its decision reversing the judgment of the trial court. (See

Ott Hardware Co.

Davis,

165 Cal. 795, [134 Pac. 973].) Upon the going down of the

remittitur,

further proceedings were had in the court below and, agreeable to the conclusions expressed in the decision just cited, the superior court rendered its

[404]

Ott Hardware Co. v. Holmberg

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Synopsis

JAMES, J.

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