Connor v. Morris

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an application for a writ of mandamus, to issue against the defendant, Treasurer of the County of Mendocino, to compel him to pay two certain county warrants. The case was sent to a referee for trial, who reported a judgment in favor of the plaintiff, which was entered accordingly, and from which the defendant appeals.

The respondent moves to strike out all that portion of the record purporting to be the statement on appeal, on the ground that it is not properly authenticated, not having been agreed to by the parties or settled by the Judge or referee. The judgment in this case [450]was rendered in July, 1862 ; a motion for a new trial was overruled November 19th, and on the ninth day of December the defendant filed and served on the plaintiff a statement on appeal from the order refusing a new trial. The certificate of the Clerk, which is dated December 20th, 1862, states that no amended statement had been filed.

Sec. 338 of the Practice Act provides that the appellant shall, within twenty days after the entry of judgment or order appealed from, prepare and serve a statement, and the respondent may, within five days thereafter, prepare and serve amendments thereto. Sec. 339 provides that where a statement is made, and the respondent shall omit to prepare amendments within the time above limited, he shall be deemed to have agreed to the statement as proposed, “ and no settlement of the statement or certificate thereto by the Judge shall be required.” In this case the certificate of the Clerk shows that the respondent did not file any amendments to the statement within the time limited by the Practice Act; he is, therefore, to be deemed to have agreed to the statement as filed by the appellant, and no settlement thereof or certificate by the Judge is necessary. The evidence in the case was taken by the referee and reported to the Court, and consists wholly of written depositions and exhibits, and is sufficiently referred to as a part of the statement to authorize the Clerk to incorporate it in the transcript. The motion of the respondent is therefore denied.

The appellant contends that the petition for the writ does not state facts sufficient to constitute a cause of action. No objection to the sufficiency of the petition was taken, either by demurrer or answer. The statute (Wood’s Dig. 715, Art. 3446) provides, that “ the Auditor of every county may draw warrants on the county treasury for the payment of all claims and demands legally chargeable against the county, which are, according to law, examined, settled, allowed, and ordered paid by the Board of Supervisors of the county,” etc. The appellant contends that the petition is defective in not averring that the claims on which the warrants in controversy were issued were examined, settled, allowed, and ordered paid by the Board of Supervisors. The complaint avers that the County Auditor drew the warrants, which are copied in full into the com