Kelley v. Sersanous

SEARLS, C. Writ of mandate to compel the defendant, as treasurer of the county of Glenn, to pay a warrant for $811.36, drawn upon the said treasurer by the county auditor, and payable to petitioner. Defendant had judgment in the court below, from which judgment plaintiff appeals.

At the trial the plaintiff or relator, read to the court his petition and the answer thereto, and rested his case. Thereupon defendant declined to introduce any evidence, and the cause was submitted to the court, and thereafter it filed written findings, specifying that the “contract alleged and set out in the answer of the defendant, and alleged as the contract upon which the claim of the plaintiff and relator is based, is ultra vires and void. ’ ’ The question involved in the case is this: Under the pleadings, upon whom did the burden of proof rest? Had the plaintiff moved the court for judgment upon the pleadings, he would, in effect, have admitted that all of the averments of the answer were true: Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 405; Fleming v. Wells, 65 Cal. 339, 4 Pac. 197; People v. Johnson, 95 Cal. 474, 31 Pac. 611; McGowan v. Ford, 107 Cal. 177, 40 Pac. 231. He did [487]not, however, thus move the court, but contented himself with submitting his case upon the admissions of the pleadings, upon the theory that under such pleadings the burden of proof was cast upon the defendant. The following is a summary of so much of the pleadings as are important for the purpose in view. The petition for the writ of mandate shows, among other things: (1) Defendant is treasurer of Glenn county. (2) That on the fifteenth day of November, 1892, the board of supervisors of Glenn county, being advised that said Glenn county had divers claims and demands against the county of Colusa, entered into an agreement with petitioner whereby they employed him, as an attorney at law, to collect the same, by action at law or otherwise, for thd use of Glenn county, and for his compensation he was to receive fifty per cent, or one-half, of all he should collect. (3) That he performed services under said agreement, whereby there was paid into the state treasury, for the credit of Glenn county, in November, 1894, on account of railroad taxes, under what is known as the “Reassessment Act,” in eases where former assessments were void, etc., the sum of $1,622.72. The fourth, fifth, sixth, seventh and eighth paragraphs of the petition, all of which are by the answer and findings of the court admitted and found to be true, are statements in apt words and proper form of the making and filing with the clerk of petitioner’s claim for one-half of the sum collected, viz., for $811.36, duly verified, etc.; the consideration thereof by the board of supervisors, and the allowance thereof by said board, and an order for its payment; the drawing of a warrant therefor by the auditor in his favor on the common fund; the presentation thereof to the county treasurer, and the indorsement thereon by the treasurer, “Not paid, for the want of funds”; that on June 13, 1895, there were in the treasury funds to pay said warrant, and demand of payment thereof, and refusal of the treasurer to make such payment. The answer denies that there was any agreement with petitioner except a certain written contract, which is set out in haec verba, and which, not being denied, as provided by section 448 of the Code of Civil Procedure, is to be taken as admitted. This contract, which is duly executed and approved by the district attorney, recites that the board of supervisors of Glenn county, by and with the advice and consent of the district attorney, agrees and contracts with K. B. Kelley that all debts, dues and de