Scheerer v. Edgar

7 P. 760, 67 Cal. 377, 1885 Cal. LEXIS 649

Opinion

Ross, J.

This is an appeal taken .by the defendant from a judgment of the Superior Court directing a writ of mandate to issue compelling the defendant, as auditor of the city and county of San Francisco, to issue to the plaintiff a warrant upon the treasurer of the city and county for the payment of a certain sum of money. The court below, by an order made, dispensed with an undertaking on appeal on the part of the appellant, by virtue of that portion of section 946 of the Code of Civil Procedure which provides that “ the court below may, in its discretion, dispense with or limit the security required by this chapter, when the appellant is an executor, administrator, trustee, or other person acting in another’s right.”

In taking the appeal the defendant was not acting in his individual capacity, for in that capacity he was not a party to the proceeding. He was proceeded against iu his official capacity as auditor; it was against him as auditor that the judgment went in the court below, and in that capacity only could he appeal. He was hot acting therefore in his own individual right, but in that of the city and county. The case therefore falls within the provision of the Code of Procedure cited, and the motion to dismiss the appeal is therefore denied.

Morrison, C. J., McKinstry, J., Thornton, J., Myrick, J., and McKee, J., concurred.