County of Contra Costa v. Soto

COOPER, C.

At the close of plaintiff’s evidence the court granted defendants’ motion for a nonsuit, and judgment was

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accordingly entered. Plaintiff brings this appeal from the judgment and from an order denying its motion for a new trial. The judgment was entered December 16, 1897, and the notice of appeal therefrom served and filed March 17, 1900. Therefore, the appeal from the judgment cannot he considered, because not taken within the statutory time. . The appeal from the order is accompanied by a statement containing the evidence and proceedings. The amended complaint alleges, in substance, that under an act of the legislature entitled, “An act to appropriate money for the support of aged persons in indigent circumstances,” approved March 18, 1883, there became and was due the plaintiff from the state of California, in November, 1894, the sum of $27,941.05; that afterwards the defendant Soto received the said sum, and paid into the treasury of plaintiff the sum of $20,955.80, and no more, and has ever since retained the balance, $6,985.28, and the same is due and unpaid to plaintiff; that prior to receiving the said money the defendants “unlawfully, fraudulently, corruptly, and knowingly conspired together to cheat and defraud the plaintiff” out of said balance, and in pursuance of said conspiracy defendants divided said sum among themselves, and that defendants have since neglected and refused to pay the same to the plaintiff.

■ Judgment is prayed for said sum of $6,985.28, with twenty per cent added thereto as damages and for costs. The complaint is signed by C. T. Brown, the district attorney of plaintiff, as plaintiff’s attorney. There is no allegation nor claim that the action is brought by order or direction of the board of supervisors of the county. Defendants severally demurred to the complaint upon the general ground that it fails to state facts sufficient to constitute a cause of action, and upon the special ground that it does not appear therefrom that the action is brought in pursuance of any order or authority of the board of supervisors of plaintiff. The demurrers were overruled and defendants answered.

The allegations of the answers and the proof on the part of plaintiff show substantially: That the said sum of money was received by defendants and the $6,985.28 was retained by them and divided in certain proportions; that it was obtained from the state under the act herein quoted as moneys due the county; that before obtaining the money the plaintiff,