Priet v. De La Montanya

Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

The facts are as follows: Defendant Hubert was treasurer of the city and county of San Francisco from December 6, 1875, until December 6, 1877, and before entering upon the discharge of his official duties gave the bond in suit, upon which his co-defendants are sureties. Upon the expiration of his term of office he succeeded himself by re-election.

Under the provisions of an act entitled “An act to authorize the widening of Dupont Street, in the city and county of San Francisco,” approved March 23, 1876 (Stats. 1875-76, p. 443), he, as such treasurer, received from the sale of Dupont Street bonds the sum of $966,950 to the credit of the Dupont Street fund. A lot on Dupont Street, belonging to one David Hunter, in which plaintiffs had a leasehold interest, was, pursuant to the act, taken for the improvement of the street, and the board of commissioners awarded the sum of $10,932, as damages for the taking of the lot, to David Hunter, as owner; and on April 20, 1877, issued to him, in his favor, a warrant, numbered 92, for the amount. Hunter, seven days thereafter, indorsed these words, “Received payment. David Hunter,” upon the warrant, and delivered it to Henry S. Tibbey, the secretary of the board of commissioners. At the time the warrant was issued, the board was unaware of the interest of plaintiffs in the lot, but subsequently, on July 9, 1877, having discovered plaintiffs’ claim of interest therein, it drew another warrant, numbered 114, for the same amount, payable to “ the owner or owners ” of the lot taken, and in compliance with section 15 of the act of March 23, 1876,. deposited the same with the county clerk, and notified defendant Hubert, as treasurer. Both warrants were payable out of the Dupont Street fund. The first warrant, Ho. 92, was afterwards illegally presented át the treasurer’s office by Tibbey, and illegally paid to him by a deputy of the treasurer. The plaintiffs, in order to have determined the proportion of the amount so awarded that they were entitled to under said section 15 of the act, brought an action against Hubert, as treasurer, T. H. Reynolds, as county clerk, and David Hunter, and prosecuted the same to final judgment, which was entered on the fifth day of January, 1883, in accordance with the decision of this court rendered therein on appeal (Priet■ V. iluberte 62 Cal. 9), in which decision it was also determined that the payment of warrant No. 92 ivas no defense to the payment of warrant No. 114. On the day after judgment was entered, the then treasurer paid on warrant No. 114 the sum of eighteen hundred dollars, being all that remained in the Dupont Street fund. This amount was divided pro rata between plaintiffs and Hunter, —the former receiving the sum of $178, and the latter the remainder, leaving the sum of $1,472, with interest thereon, together with $100 as costs in that action, due the plaintiffs, to recover which this action was brought against Hubert and his sureties. Plaintiffs had judgment, from which, and an order denying anew trial, they appeal.