County of Alameda v. Evers

COOPER, C.

The court below sustained a demurrer to the amended complaint, and plaintiff declining further to amend, judgment was entered for defendant. This appeal is from the judgment. It appears from the complaint that defendant, as coroner, in January, 1894, presented in due form, and duly verified, a claim against the plaintiff, which claim was duly itemized, and was for certain alleged services performed by defendant in his official capacity. The claim was for the total sum of $230, and was duly passed upon and audited by the board of supervisors of the county, and a warrant ordered drawn in defendant’s favor for the amount. The auditor

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accordingly drew his warrant upon the treasurer, and the same was, upon presentation, duly paid.

The claim included various items for services, which upon their face were a legal charge against the county, but, it is alleged, the services were never performed. Among such items are ten dollars for holding an inquest upon the body of Peter Petroff, deceased; ten dollars for holding an inquest upon the body of Henrietta Kraft, deceased, and a number of items of five dollars each for the removal of the remains of various named deceased parties to the morgue.

It is alleged that such services were never performed; that defendant made said claim and the affidavit thereto knowing that it was false in the respects pointed out, and that by such false statements he willfully misled the board of supervisors, and that it allowed the claim, relying upon the false statements contained therein, and believing that the said services had been performed by defendant as stated in the claim. This action is brought to recover of defendant the amount so paid to him for such alleged services. In other words, after the claim of defendant has been duly passed upon and allowed by the board of supervisors, acting in a judicial capacity, it is now sought in this collateral proceeding to prove that the finding of the board on a question of fact was not correct. The very question which the board had the right to determine, and which it was its peculiar and exclusive province to determine, was as to whether or not the services set forth in the claim had been performed. It was the duty of the board, in its judicial capacity, to carefully examine this question. It had the right to the advice and assistance of the district attorney of the county, and the right to bring witnesses before it and examine them on questions of fact.