McFarland v. McCowen

Searls, C. — This was an application in the court below by William McFarland, the respondent here, for a writ of mandate to compel appellant, auditor of the county of Mendocino, to issue two warrants to respondent upon the county treasurer for [330]$149.25 and $244.85, respectively. The respondent was a constable of Mendocino County, and as such presented two claims for fees against the county to the board of supervisors for the above several amounts. The bills or claims presented were itemized accounts for constable fees for arresting criminals under warrants and for serving subpoenas iu criminal cases, and so far as appears were regular as to form and duly verified. The board of supervisors allowed the claims, and ordered the auditor, Hale McCowen, the appellant, to draw his warrants on the county treasurer therefor, which he refused to do. Respondent procured an alternative writ of mandate to issue against appellant as such auditor, commanding him to draw his warrants as auditor on the county treasurer for the several amounts specified, and to deliver the same to respondent by a day certain therein named, and failing to do so, that he appear and show cause, if any, etc. Appellant appeared, and for cause showed to the court and averred in substance that none of the warrants or subpcenas were placed in the hands of respondent for service, and that he never served them; denied that his fees amounted to the sums specified, or any sum of money whatever, or that anything was due him. The other allegations of the petition were admitted.

At the hearing the respondent’s attorney moved the court for a judgment that a final writ of mandate issue upon the pleadings, upon the ground that the matters set forth in the return constituted no defense to the matters set out and alleged iu the application and writ, and on the further ground that the board of supervisors, having passed upon the facts as to the services rendered and the amount due to respondent, their judgment thereon Avas final in regard to such facts, and not subject to revieAV in the pending proceeding. The court granted the motion, and ordered a peremptory writ of mandate to issue. At the time and place of the hearing of said motion, the district attorney, on behalf of appellant, asked leave to prove, and offered to'prove, the facts set up in his return or answer as above specified, Avliich leave was refused by the court, and to the ruling appellant then and there excepted in due form, and such ruling is assigned as error on this appeal.

The appeal involves this single proposition: Where a claim