Jones v. Morgan

Foote, C. The plaintiff brought a petition for a writ of mandate in the Superior Court of Butte County, against the defendant as treasurer of that county, the object being to compel the treasurer to pay a warrant issued to the plaintiff previously by the auditor of the said county.

In referring to the action of the board of supervisors of said county in his petition, the plaintiff, among other things, avers: “ that at the said December session of said board of supervisors the said board audited and allowed said claim of plaintiff in the sum of $500, and ordered the auditor of Butte County to draw a warrant in favor of plaintiff on the defendant as treasurer of said county for said sum of $500.”

This petition was demurred to and answered at the same time.

The grounds of demurrer were “that the petition did not state facts sufficient to authorize the court to grant the writ of mandate or to give any relief.” The demurrer was overruled. A trial on the merits was then had of the case by the court, a jury being waived.

• The judgment of the court was to order a peremptory writ of mandate as prayed for, and for costs against the defendant.

A new trial was moved for and denied. On this motion a statement was agreed upon in open court, and by a stipulation it was afterward agreed that it should be the statement upon appeal.

From the judgment of the court, and its order denying the motion for a new trial, an appeal was* taken.

The only ground relied on in argument by the appellant to reverse the court below in its ruling on the demurrer is that the complaint did not set out in reference to the claim of plaintiff “ it was ordered paid ” in the very language of the statute.

The complaint recited that the board of supervisors of Butte County “ audited and allowed said claim of plaintiff in the sum of $500, and ordered the auditor of Butte County to draw a warrant in favor of plaintiff on the defendant, as treasurer of said county, for said sum of $500.”

It further alleged “ that on the 12th day of December, 1884, [310]the auditor of said county of Butte, in pursuance to said order of the said board of supervisors of said county, issued, drew, and delivered to plaintiff a warrant for said sum of $500.”