Fresno Canal & Irrigation Co. v. McKenzie

McFARLAND, J. This is an action to recover $1,200 damages for alleged official misconduct by defendant McKernzie, as treasurer of the city of Fresno. The defendant James is sued as a surety on McKenzie’s official bond. Judgment went for defendants in the court below, and plaintiff appeals from the judgment and from an order denying a new trial.

The alleged misconduct consists in the refusal by McKenzie to pay a certain warrant for $1,200 drawn on him by the city clerk, and payable out of the sewer fund of said city, and in paying to another person money of said fund, which, as plaintiff claims, should have been, paid to plaintiff on said warrant. There is not much difference between the parties as to the facts. Plaintiff’s grantor, McMurtry, during the years 1893 and 1894, had a contract with the city of Fresno •for furnishing water for flushing the sewers of the city, for which he was to be paid $400 per month out of the sewer fund. He filed with the clerk of the city his demand under this contract for $1,200, alleged to have been due and unpaid for the months of October, November and December, 1893; and afterward, and prior to January 22, 1897, he assigned the contract and the said demand to plaintiff. On said January 22, 1897, the hoard of trustees of the city allowed and [693]approved said demand, and directed the clerk to draw a warrant on McKenzie against the sewer fund in plaintiff’s favor for the amount of said demand. Such warrant was drawn on said twenty-second day of January, and on the same day was presented to the defendant McKenzie, who refused to pay it. However, one McBean had a contract with the city for taking care of its sewage for $4,900 per annum, payable quarterly, which contract also covered the years 1893 and 1894. The city had refused to pay him for the fiscal year 1893-94, upon the ground that the contract was illegal; and on the twenty-fifth day of June, 1894, he had commenced an action in the superior court against the city and the present defendant McKenzie to enforce payment of the amount due on the contract. At the commencement of his action he obtained an injunction restraining McKenzie from paying out the money in the sewer fund. McBean was defeated in the lower court, but on appeal to this court the judgment was reversed, and it was declared here that his contract was not illegal, and that he was entitled to recover the amount due thereon: McBean v. City of Fresno, 112 Cal. 159, 53 Am. St. Rep. 191, 31 L. R. A. 794, 44 Pac. 358. After the remittitur went down, and on August 13, 1896, the superior court rendered and entered judgment in favor of McBean against the city for $4,900, and decreed that it should be paid “out of any moneys now in' the sewer fund of the city of Fresno for the year ending June 30, 1894”; and that “the treasurer of said defendant city of Fresno pay over to the said plaintiff any money now in his hands or subject to his control as such treasurer, or that may hereafter come into his hands or under his control as such treasurer, belonging to the sewer fund, for the fiscal year ending June 30, 1894, or out of any other money that may come into his hands or under his control of the sewer fund of said year as such treasurer, available therefor, and not otherwise appropriated.” McBean, prior to the allowance of plaintiff’s demand as hereinbefore stated, presented a certified copy of his judgment to the board of trustees, and demanded that it should be audited and allowed; but the board denied the demand, and afterward, notwithstanding said judgment, and disregarding the same, allowed plaintiff’s demand as aforesaid. At the time of the entry of the judgment there was in the sewer fund for the fiscal year 1893-94 $2,603.75, and no more, and, upon the presentation