Ventura County v. Clay

Vanclief, C. This appeal is from a judgment in favor of defendants on demurrer to the complaint; and whether or not the lower court erred in sustaining the demurrer is the only matter in controversy.

The defendant Clay was elected to the office of treasurer of said county for the term commencing on the first Monday in January, 1893, and the other defendants are sureties on his official bond for that term, and this action is upon that official bond to recover money alleged to have been unlawfully paid out from the treasury of said county by Clay during said term of office.

The complaint consists of thirty-eight counts, each charging the payment of a distinct sum of money from the treasury without authority of law, the sums charged to have been so paid out aggregating nearly four thousand dollars. The only substantial differences in the counts are that the several payments are alleged to have been made at different times, and that all were not made to the same person, but a portion thereof to different persons and for different kinds of service. That part of the first count, to which alone the demurrer applies, is substantially a sample of that part of each of the other counts to which the demurrer is applicable, excepting the aforesaid differences which are not material to the merits of the demurrer, and is as follows:

“ That on or about the eighth day of March, 1894, F. E. Smith filed a claim against the county for three-fifths of a month’s service during the month of February, 1894 for the sum of sixty dollars, which services were performed, as plaintiff is informed and believes, and so alleges the fact to be, in assisting the recorder and auditor of said county in the performance of the duties of his office; and the board of supervisors of said county, on or about the said eighth day of March, 1894, without any authority of law, and when the said claim was not a legal charge against the said county, allowed said claim, and thereupon the auditor of said county drew a warrant in favor of said F. E. Smith, for said sum of [244]sixty dollars, on the treasury of said county without any authority of law, and the said F. E. Smith presented the same to the said Henry Clay as treasurer of said county, which warrant the said treasurer then paid out of the general fund of said county, while and when the said warrant and claim was not a legal charge against said county, to the damage of said county, plaintiff, in the sum of sixty dollars, which sum is due and unpaid from said defendants to said plaintiff.