Weaver v. City & County of San Francisco

VAN DYKE, J.

This appeal is taken by the defendant, the city and county of San Francisco, from a judgment rendered against defendant in favor of the plaintiff upon the pleadings." The record consists of the amended complaint, demurrer to the same, order overruling the demurrer, answer on the part of the defendant, notice of motion to take judgment upon the pleadings, and the so-called findings and the judgment entered in accordance with the motion, and notice of the appeal.

The complaint counts upon a former judgment rendered in the superior court of the city and county of San Francisco April 24, 1896, which judgment, it is alleged, was rendered in favor of the plaintiff herein and against the defendant herein, for the sum of $2,226.69 principal, $511.31 interest, and $108 costs of suit, amounting in the aggregate to $2,846. The said judgment so given was rendered and entered, it is alleged, in pursuance of and in obedience to the direction of the supreme court of California on appeal by said plaintiff from a judgment rendered and entered against him on the first trial of the case. The complaint further alleges that part of said judgment—to wit, the sum of $2,226.70— was paid by the defendant on the 8th of October, 1901, and. that no other sum of money had been paid thereon, and that, said judgment so rendered and entered was for material furnished, work done, and labor performed for defendant by the plaintiff during the fiscal year ending June 30, 1893. It is further alleged in the complaint that under the amendment of the state constitution the said defendant is authorized and empowered to pay such demands with interest thereon at the rate of five per cent per annum, and that the amount of interest due, owing, and unpaid on said judgment so given, rendered, and made, at the rate of five per cent, is $775.30, and the balance of the principal unpaid is $1,619.30. In the answer the judgment counted upon in the action is set out in full. Said judgment recites that the cause having been appealed to the supreme court of the state of California on the

[730]

twenty-fifth day of March, 1895, and

remittitur

from said supreme court having been filed in the clerk’s office reversing the judgment appealed from, with directions to render judgment for plaintiff for $2,226.69, but limiting its payment to the funds of said city and county for the fiscal year ending June 30, 1893, coming on regularly for hearing, etc., thereupon, in accordance with said direction, enters judgment accordingly. “Said judgment to be paid out of the income and revenue of said defendant provided for the fiscal year ending June 30, 1893.”