Lamberson v. Jefferds

Citations

• 116 Cal. 492
• 48 P. 485
• 1897 Cal. LEXIS 578

Syllabus

<p>Appeal — Motion to Dismiss — Absence of Undertaking — County Auditor as Appellant — Representation of County — Construction of Code.—Under section 1058 of ; the Code of Civil Procedure, which dispenses with an undertaking on an appeal taken by the state or - any state officer, or- by any county, city and county, city, or town, although it makes no mention of county officers, yet, where the county is the real party in interest, and is represented by the county auditor, ,, not acting in his individual right, but in behalf of the county, the case is within the reason of the rule prescribed by that section, and though no order is obtained dispensing with an undertaking on appeal under section 946 of the Code of Civil Procedure, the appeal of the county auditor in such a case will not be dismissed for want of the undertaking.</p> <p>Id.—Illegal Claim against County—Refusal of Warrant by Auditor —Action for County.—The county auditor is not protected by an order of the supervisors allowing an illegal claim, and if he refuses to issue a warrant therefor, he is acting for the county, and is protecting it against the unlawful acts of the board of supervisors.</p> <p>Id.—Dispensing with Undertaking—Merits of Case—Improper Refusal of Warrant—Question of Costs or Damages.—The fact that an undertaking is dispensed with, upon an appeal by a county auditor, who is contesting a claim against a county as illegal, does not necessarily imply that a personal judgment for costs or damages may not be rendered against him on the merits of the case for refusal to issue the warrant improperly without just cause to doubt the validity of the claim.</p>