Scheerer v. Edgar
Before: Foote
Synopsis
Mandamus.—Assignment oe Judgment—County Warrant — Duty of Auditor. — The auditor of the city and county of San Francisco can only draw his warrant in satisfaction of a judgment against the city and county in favor of the person to whom the hoard of supervisors have ordered.the judgment to be paid; and if they have ordered it paid to the plaintiff, and the warrant has been drawn in his favor by the auditor, though after notice of an assignment of the judgment, the only remedy of the assignee is to compel a transfer of the warrant, and he cannot obtain a writ of mandate to compel the auditor to draw a warrant in his favor. The auditor may refuse to draw an illegal warrant, but cannot substitute his own affirmative action for that of the board.
Foote, C. This is an action instituted for the purpose of compelling, by a writ of mandate, the auditor of the city and county of San Francisco to draw his warrant on the treasurer in favor of the assignee of a plaintiff who had obtained a final judgment for a sum of Anoney against said city and county.
It appears that Paul Friedhofer was the plaintiff for whom the judgment was rendered; that before the auditor drew his warrant on the treasurer, the judgment had been assigned by Friedhofer to the petitioner in this action; that the auditor had notice of the assignment, but drew the- warrant in favor of Friedhofer, the persqn ordered paid by the board of supervisors.
The court below gave judgment in accordance with the prayer of the petitioner, and from that and an order denying a new trial this appeal is taken.
The authority of the auditor to draw his warrant on the treasurer for the payment of a final judgment against the city and county depends upon section 2 of an act approved April 23,1858, to be found on page 42 of Worley’s compilation of the consolidation and other acts relating to the government of the city and county of San Francisco, which is as follows: —
“Sec. 2. The auditor of said city and county is hereby authorized to audit .... any and all sums that may be allowed and ordered paid by said board of supervisors by authority of this act.”
Another part of this act gives the board power to [571]“order paid any final judgment against said city and county.”
It is unnecessary to discuss here the question as to whether that act has been so amended as that such judgments must be paid out of the general rather than the surplus fund. The order made by the board for the auditing and payment of the judgment in controversy is in this language:—■
“Authorization No. 3496.—Resolved, That an expenditure of two thousand and forty-nine 47-100 ($2,049.47) dollars be and the same is hereby authorized to be made out of the general fund in payment to Paul Friedhofer in satisfaction of judgment rendered for plaintiff and against the defendant in the suit of Paul Friedhofer v. The City and County of San Francisco, in the superior court, department 3, for the sum of $1,756, with costs and interest, as follows:—
Judgment...............................$1,756 00
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