Livingston v. Widber

47 P. 247, 5 Cal. Unrep. 557, 1896 Cal. LEXIS 1110

• Court: California Supreme Court
• Decided: December 28, 1896
• Docket: S. F. No. 370
• Status: Published

Opinion

PER CURIAM.

The plaintiffs sought by this proceeding a writ of mandate commanding the defendant, as treasurer of the city and county of San Francisco, to pay certain coupons of the Dupont street bonds. The defendant pleaded as a defense to the proceeding that the moneys in his hands belonging to the Dupont street fund had been paid in under protest, and that the parties paying the same had instituted an action, entitled “Davis v. The City and County of San Francisco,” which was then pending in this court, and undetermined, for the recovery of the moneys so paid, and that for this reason he was entitled to retain the same until the determination of that action. The superior court, however, rendered judgment awarding the writ, from which he appealed. Since the appeal was taken, the action of Davis v. City and County of San Francisco, has been determined by this court against the plaintiff therein (115 Cal. 67, 46 Pac. 863), by which the defense alleged in the present action has become unavailing. The judgment is affirmed.