Priet v. De La Montanya

24 P. 612, 85 Cal. 148, 1890 Cal. LEXIS 887

• Court: California Supreme Court
• Decided: July 31, 1890
• Docket: No. 11531
• Status: Published

Opinion

Fox, J.

After a careful re-examination of this ease in Bank, we are satisfied that inasmuch as this court did decide in Priet v. Hubert, 62 Cal. 17, that the treasurer paid to Tibbey, on warrant No. 92, in “ violation of his official duty, and with full knowledge that 92 represented the amount of damages allowed for the property to which the present plaintiff asserted a claim, and that he paid 92 with the money which he himself had set apart for the payment of 114, then on deposit with the county clerk to await the determination of this action,” and that such pajnnent was “no more a payment to Hunter than would have been a payment of the sum to a stranger, or an appropriation of it by the treasurer himself,” which decision is res ad judicata, and has become the law of the case as to that payment, as against the defendant Hubert; and inasmuch as such payment was a misappropriation of the fund for which the sureties would be liable if the amount was not made good by the treasurer himself, and there is no proof that he ever did make it good, nor any proof or allegation that there was any misappropriatiou of the funds of the treasury during Hubert’s second term in the office of treasurer, there is no ground for disturbing the judgment of the court below in this case.

It is therefore ordered that the judgment and order appealed from he affirmed.

Sharpstein, J., Thornton, J., McFarland, J., Beatty, C. J., and Paterson, J., concurred.