Barnes v. Glide

McFarland, J. The plaintiff filed a petition or complaint in the superior court, in which he asked for a writ of .mandate to be directed to the defendants, Swamp Land District, No. 307, and J. C. Glide, Francis T. Dwyer, and Joseph L. Monica, the present trustees of said district, commanding them “ to proceed to have an assessment levied upon the lands in said district sufficient to pay, and for the purpose of paying,” certain warrants described in the complaint. The defendants filed a demurrer to the complaint. The demurrer was both general and special, and it was sustained by the court below, and judgment rendered for defendants. From this judgment the plaintiff appeals.

The complaint contains quite a number of counts, but they are all alike, except that a different warrant is described in each count. The first count is a sample of them all. In that count it is averred that Swamp Land District No. 307 was duly organized in September, 1877, and has ever since been an existing corporation; that the other defendants, Glide, Dwyer, and Monica, are now, and for more than six months last past have been, the duly elected and acting trustees of said district; that on the tenth day of September, 1877, the said district, through its then board of trustees, issued to H. M. Hawley & Co. its certain warrant, numbered 23, upon the treasurer of Yolo county, in which county the district is situated, directing said treasurer to pay to said Hawley & Co., or order, “ from the Swamp Land Fund in the treasury of said county to the credit of said district No. 307, the sum of three hundred and seventy-two dollars

[4]and ninety-six cents”; that the said warrant was presented to the board of supervisors of said county, and was by them approved, and was thereafter presented to the treasurer of said county, and was by him, on the twelfth day of November, 1887, marked, “Not paid for want of funds,” and registered; that since the issuance of said warrant there never has been in the treasury of said county, to the credit of said Swamp Land District, or in the funds of said district, sufficient money with which to pay said warrant, or any interest thereof,, and that there never has, during any of said time, been any money whatever in said treasury to the credit of said district, except only the sum of three hundred and eighty dollars, which remained in the treasury for fourteen days, and was paid out upon another warrant; that prior to the first day of November, 1895, the said Hawley & Co. assigned said warrant to plaintiff, who is now the owner and holder thereof; that on the fifth day of November, 1895, the plaintiff demanded, in writing, of defendants that they provide for the payment of said warrant; that the defendant failed and neglected to pay said warrant, or to provide for the payment thereof, or to-comply with the demand aforesaid, and no part thereof has ever been paid, but the whole thereof “ is due, owing, and unpaid from the said Swamp Land District No. 307 unto this plaintiff.” The prayer is that the defendants be required “to proceed to have an assessment levied upon the land in said district sufficient to pay, and for the purpose of paying, each and every warrant hereinbefore described, and all interest due thereon, and to collect all taxes thereon, and to pay all taxes and moneys so collected into the treasury of the county of Yolo,” etc. There is also an averment, “upon information and belief,” that the defendants have moneys in their hands" belonging to said district, and a prayer that they pay the same into the treasury of said Yolo county; but, as no point is made in the briefs as to this averment, and as it is evidently considered by the parties as unimportant, it is not necessary to consider it.