McCloskey v. Sutro

Per Curiam. —In this cause, the opinion of the Department (Two) will stand as the opinion of the court.

We add this further remark: The decree cannot be said to be without jurisdiction. It may have been made by consent of the plaintiffs themselves. The defendants being innocent purchasers for value of Cobb, the judgment and order must be reversed, as directed in the opinion of the Department.

We do not see that in coming to this conclusion, we have overruled any of the cases to which our attention has been called by counsel for respondents. We do not intend to hold that a warrant is a negotiable instrument.

Ross, J., McICinstry, J., and McKee, J., dissented.

The following is the opinion of Department Two, referred to in the foregoing decision:—

Thornton, J. —The action was brought to recover of defendants a warrant or audited account, issued by the auditor of the city and county of San Francisco, or its value. It appears that the account was presented to the board of supervisors and allowed by it. It was then presented to the auditor to be allowed by him. This he refused. It was finally allowed by the auditor under a peremptory writ of mandate. The court.by its judgment directed the auditing of the account and. the issu[487]anee of a warrant in the usual 'form to the plaintiffs, in the action for the writ “ or their attorney therein.” The auditor allowed the account and issued the warrant in accordance with the order of the court to J. P. Sweeney <& Co., or M. G. Cobb (the latter being the attorney referred to). Cobb sold the warrant to defendants. These facts appear clearly in the evidence.

We are of opinion that the warrant, was issued in accordance with the judgment of the court, and that being the case, the defendants, when they purchased it, were not bound to inquire further into the matter of title than to see that it conformed to the direction given by the court. The defendants acquired a good title by the purchase from Cobb, and having paid Cobb for the warrant, they are not responsible to the plaintiffs herein.

•As the foregoing must dispose of the case, it is unnecessary to determine the other questions discussed on the argument.

The judgment and order denying a new trial are reversed, and the cause remanded.