Erkson v. Parker

HALL, J.

This is an appeal from a judgment directing •defendant to draw his warrant in favor of John T. Wallace, justice of the peace, for the sum of $65.90, and also from an order denying defendant’s motion for a new trial.

Although there is, as just stated, an appeal from the order-denying defendant’s motion for a new trial, the only questions discussed by appellant in his brief arise out of the appeal from the judgment, and appear in the judgment-roll without regard to the bill of exceptions. The facts, as set forth in the findings, are that one Martin Murphy was the

de facto

auditor of

[99]

Santa Clara county until and for many months prior to February 26, 1904, upon which date defendant was let into and took possession of the office in pursuance of the judgment of the supreme court of this state; that as such auditor the said Murphy earned as his salary for the portion of February for which he served, the sum of $280, which had not been paid him on March 4, 1904, nor had any warrant been drawn at that time therefor. On the fourteenth day of August, 1903, plaintiff obtained a judgment in the justice’s court of San Jose township, of which J. T. Wallace was the justice, in the sum of $62.65, against said Murphy for board furnished him and his family, which has never been paid. That on the twentieth day of February, 1904, plaintiff filed with said Murphy, the then acting auditor of said county, an abstract of said judgment, accompanied with an affidavit of the amount then due on said judgment, and that she desired to avail herself of the provisions of section 710 of the Code of Civil Procedure. On the third day of March, 1904, said Murphy assigned and set over unto T. C. Hogan, G. Geoffrey, and William Osterman, to whom he then owed a total of $280, all his claim against said county for his salary, for the month of February, 1904, and his claim to his warrant for such salary, of which both the treasurer and auditor of said county had immediate notice. Thereafter, on the same day, plaintiff filed with defendant another abstract of her said judgment, and on the fourth day of March, 1904, filed a duly authenticated transcript of her said judgment against said Murphy, together with the required affidavit as to the amount due, etc., with defendant.