THE COUNTY OF LOS ANGELES, Respondent, v. JAMES B. LANKERSHIM, Appellant, 100 Cal. 525

Vanclief, C. The defendant was one of the sureties on the official bond of J. W. Broaded, treasurer of plaintiff, for the term of two years commencing on the first Monday of January, 1887; and this action is upon that bond to recover $7,910.80 for alleged delinquencies of the treasurer during that term. Broaded died November 29, 1889, and this action was commenced May 5,1890. The cause was tried by the court, and judgment rendered for plaintiff for the sum of $7,371.60. The defendant has appealed from the judgment, and also from an order denying his motion for a new trial.

The judgment includes the sum of $3,840, alleged to have been paid out of the school fund, by the treasurer, in June, 1888, to some person unknown to plaintiff, upon an auditor’s warrant not based upon any order of the board of supervisors, nor upon any order of the superior court, nor upon any authority otherwise provided bylaw, with interest thereon from June 30,1888, until the date of the judgment. The residue of the judgment is conceded to be right; so that the only points made by appellant relate to the question, whether or not the treasurer justifiably paid out of the school fund said sum of $3,840.

As to this payment from the school fund, the court, originally, found as follows: “V. That in the month of June, 1888, said treasurer also paid out of the general school fund of said county the sum of $3,840, to some person unknown; that said payment was made upon what purported to be a county auditor’s warrant, made payable to one C. H.

Delevan, of whose existence no evidence was given, and which warrant cannot be found; that no requisition of said last-named money was ever made by the county superintendent of public schools upon the county auditor of said county, nor was any order therefor made by any board of trustees, nor by any board of education in or of said county, and said purported warrant was fraudulent and wholly without right, and was not based upon any claim against the school fund of said county.” The original findings, including the above, were filed July 28, 1892, and the judgment, signed by the judge, was filed and docketed on the same day, and entered on the next day—July 29th.

On August 3,1892, the judge filed the following additional finding: “ The court makes the following additional finding herein, the facts having been established on the trial of this action, to wit: “The paper referred to in finding V, as said finding V appears in the findings already filed in this cause, and which it is therein stated purported to be a county auditor’s warrant, was regular on its face, was executed by the auditor or deputy auditor of said county, and the amount named therein and for which said warrant purported to be drawn was $3,840. “ W. H.

Clark, “ Judge of said court. [Indorsed]: Filed August 3, 1892.” Counsel for appellant contend that, upon finding V and the above additional finding, the judgment should have been for defendant, as to the sum of three thousand eight hundred and forty dollars paid from the school fund. But respondent contends: 1. That the additional finding is immaterial; and 2. That if it is material, it cannot be deemed a finding in the case, because made after the entry of the judgment, and without notice to respondent.

Assuming (without deciding) that the additional finding is equivalent to a finding that the warrant was genuine and contained in proper form, substantially, all things which the law requires in a warrant on the school fund, I think the additional finding is material, unless the treasurer had actual or constructive notice that the warrant was not based upon a lawful requisition of the county superintendent of schools. The law has provided the treasurer with a check upon the auditor in all cases where warrants are drawn for claims allowed by the board of supervisors.

Section 20 of the County Government Act requires the clerk of that board, immediately after the adjournment of each meeting, to prepare and certify duplicate lists “of all claims allowed and orders made for the payment of money,” etc., to be countersigned by the chairman of the board; one of which lists must be delivered to and left with the treasurer, who is forbidden to pay any warrant for a claim allowed by the board, unless the claim or order upon which the warrant is based appears on such list.

Warrants upon the school fund, however, are not based upon orders of the board of supervisors, but upon requisitions of the superintendent of schools, which requisitions are based upon orders of the school trustees or board of education. (Pol. Code, sec. 1543.) But the treasurer is not furnished with any list of the requisitions of the school superintendent, nor of the orders of the school trustees or board of education. Nor is there any provision of law requiring notice to the treasurer of the orders or requisitions upon which warrants upon the school fund are based.

Section 70 of the County Government Act provides that the county treasurer must .... disburse the county moneys only on county warrants issued by the county auditor, based on orders of the board of supervisors, or upon order of the Superior Court, or as otherwise provided by law.”

Section 73 of the same act provides: “ When a warrant is presented for payment, if there is money in the treasury for that purpose, he must pay the same, and write on the face thereof ‘ paid,’ the date of payment, and sign his name thereto, provided, however, that the treasurer shall not receive, or pay, or indorse, any warrant until he shall have received from the clerk of the board of supervisors the certified list mentioned in subdivision four of

section twenty of this act, and not then unless the claim or order upon which said warrant is based appears upon such list.” It is obvious that the proviso in this

section was intended to apply only to warrants based on orders of the board of supervisors, since the claim or requisition upon which a warrant on the school fund is based could not appear upon any list of claims allowed by the board of supervisors. Therefore, when this

section is to be applied to warrants on the school fund, the proviso should be omitted. Thus read, the

section absolutely commands the treasurer to pay a genuine auditor’s warrant on the school fund, if there “is money in the treasury for that purpose.” And this is perfectly consistent with subdivision 6 of

section 70, above quoted, which restricts the disbursement of county moneys to the payment of warrants “ based on orders of the board of supervisors, or upon order of a superior court, or as otherwise provided by law.”

Section 73 (omitting the proviso) is a provision of law for the payment of warrants on the school fund, otherwise than on the condition that they are based on orders of the board of supervisors or superior courts; and fully answers the intention and purpose of the last clause of subdivision 6 of

section 70, above italicized.

It must have been intended by the legislature that a genuine auditor’s warrant upon the school fund, in regular and legal form, should justify the treasurer in paying it, unless the treasurer has notice that it was not based upon a lawful demand, or has notice of facts sufficient to put an ordinarily prudent treasurer upon inquiry, which, if diligently prosecuted, would lead to a discovery of the illegality of the claim upon which the warrant was founded; otherwise the legislature would have provided for him a check upon the auditor and all others for whose delinquencies he is to be held responsible, of the same kind as that provided in cases of warrants based on claims allowed by the hoard of supervisors, in which cases the treasurer may properly and without hardship be held severally liable with the auditor, if the -warrant is not founded upon an apparently lawful order of the board.

But suppose the order of the board of supervisors is only apparently lawful, but really fraudulent and illegal, should either the auditor or treasurer be held liable, in case the warrant is drawn and paid ? If not, why not? I think neither should be held liable, for the reason that neither had notice of the fraud or illegality, both being misled by the apparently regular and lawful order of the board.

Again, suppose the warrant on the school fund in this case had been based on an apparently valid requisition of the superintendent of schools, but that such requisition was not founded upon any order of the board of school trustees nor board of education, would either the auditor or treasurer be liable for the three thousand eight hundred and forty dollars paid on the warrant? If either would be liable, why not extend the liability a step further back and bold them accountable for any delinquency or fraud of school trustees or board of education of which they had no notice?

When a genuine warrant upon the school fund in legal form is presented for payment, to what extent must the treasurer review the action of the auditor, superintendent of schools, and board of school trustees before he may safely pay it?

If such genuine auditor’s warrant does not justify the payment, I see no reason why the addition of a genuine requisition of the superintendent of schools, based upon no order of school trustees or board of education, should justify it; since the treasurer can no more be presumed to have notice of the want of a proper requisition of the superintendent upon the auditor, than of the want of a proper order of the school trustees or board of education upon the superintendent.

If the treasurer is to be made responsible for the delinquencies of the auditor, the superintendent of schools, and the school trustees, he should be supplied with lists of all requisitions of the superintendent upon the auditor, and of all orders of school trustees and boards of education upon the superintendent; and even then fraudulent claims might be allowed by school trustees or boards of education upon which genuine requisitions in due form might be made by the superintendent upon the auditor.

While it has been often decided that treasurers and their sureties are responsible on their official bond for losses of public money by means of forgery, theft, and robbery (Murfree on Official Bonds, sec. 197), no case has been cited by counsel, and I have found none, in which they have been held accountable for a loss resulting from payment of a genuine auditor’s or controller’s warrant in due form, without notice, actual or constructive, of any fraud or infirmity in the claim upon which such warrant was based; and it would seem that to hold a treasurer accountable for the frauds, mistakes, or other delinquencies of the auditor, of which he has no notice, would be to hold that the so-called auditor’s warrants for the payment of money from the treasury are delusive misnomers, since they warrant nothing.

I am of opinion, however, that the additional finding, though material, cannot be deemed a valid finding in the ease. After the entry of final judgment the court had no power to change the findings of fact in any material respect. The superior court has power to set aside judgments and findings upon various grounds, as provided in the Code of Civil Procedure; but there is no provision of law authorizing any change in the findings of fact after the entry of final judgment thereon, while the judgment is allowed to stand.

The entry of final judgment terminates the jurisdiction of the court over the cause and the parties, except as otherwise expressly provided by law. Hence, it is wholly immaterial whether the additional finding in this case was made upon notice to plaintiff or not. The court had no more power to make it upon notice than without notice. Whether, and to what extent, findings may be changed by consent and agreement of the parties is not here involved; but however this may be, a change of findings thus made would be the act of the parties, and not of the court.

The following cases bear more or less directly upon the question as to the power of the court to change findings: Condee v. Barton, 62 Cal. 1; Bate v. Miller, 63 Cal. 233; Wunderlin v. Cadogan, 75 Cal. 618; Smith v. Taylor, 82 Cal. 544; Brady v. Burke, 90 Cal. 1.

Yet I think the original findings, filed before the entry of judgment, insufficient to support the judgment for the sum paid out of the school fund on warrant No. 1712, payable to Delevan. “ There is always a presumption of law that officers perform their duty, and whenever there is a charge made of official default, the burden of proof is upon the party making the allegation.

If, in an action on an official bond, the breach laid is the failure of the officer to discharge the duties of his office by refusing or neglecting to account for, and pay over as required by law, money which came to his hands, it is incumbent upon the plaintiff to prove what money did come to his hands, what amount he has not truly accounted for, and in what respects he has failed to do his duty.” (Murfree on Official Bonds, sec. 593.) And such presumption in favor of the officer inures to the benefit of his sureties. (Murfree on Official Bonds, sec. 596.) In the face of this presumption of law the original finding, No. 5, utterly fails to show that the treasurer failed to perform his duty in any respect, unless he was responsible for the delinquency or fraud of the auditor in drawing the warrant without a proper requisition therefor from the superintendent of schools, of which fraud or delinquency he had no notice.

The finding that the “warrant was fraudulent and wholly without right” is not a finding that the treasurer was guilty of any fraud or wrong. And from the finding that “ said payment was made upon what purported to be a county auditor’s warrant, made payable to one C. H. Delevan, of whose existence no evidence was given, and which warrant cannot be found,” the presumption must be, in the absence of any finding to the contrary, that the warrant was genuine, and complied with the law in form and substance; in other words, that it was what it “ purported ” to be.

Nothing against the treasurer can be inferred from the fact that the warrant could not be found at the time of the trial. The trial was three years after the warrant had been paid and presumptively deposited with the auditor, as required by

section 80 of the County Government Act. That

section requires the treasurer, on the first Monday in each month, to settle his accounts relating to the collection and disbursement of public revenue, and at such, settlements to deposit all warrants redeemed by him, and take the auditor’s receipt therefor. Such a receipt from the auditor of all county warrants paid in the month of June, 1888, amounting to $188,162.74, including the sum of $3,840, for which the warrant in question was drawn, was offered in evidence by the defendant.

But even if this receipt had not been produced, the presumption would be that the warrant (which “ cannot be found”), if not in the possession of the auditor, who was the legal custodian thereof, must have been lost, destroyed, or otherwise disposed of by him. The sixth finding—“That all of said payments were made by said treasurer wrongfully and without right or authority, and in violation of his duty as such treasurer”—consists of mere conclusions of law; and even if it could be regarded as a statement of facts, it is too general and indefinite.

The"finding “That the said treasurer did not during his said term of office keep any books as required by subdivision 3 of

section 70 of the County Government Act,” does not state any particular in which the treasurer’s books were deficient; and, consequently, does not show that any deficiency or irregularity in his bookkeeping contributed anything to the cause or causes of the loss of the money paid on the warrant to Delevan.

The liability of the defendant on the bond of Broaded was not discharged by the failure of the plaintiff to present its claims arising on that bond to the executor of the estate of Broaded for allowance within the period of ten months after publication of notice to creditors; and in so ruling the court did not err. I think that so much of the judgment as appears to be based upon the payment by the treasurer, Broaded, of the auditor’s warrant on the school fund for $3,840,' payable to C. H.

Delevan, should be reversed, and a new trial granted on the issue as to whether the defendant is accountable for the money paid on that warrant; but, as to the residue of the judgment not based upon the payment of that warrant, the order and judgment should be affirmed. Costs of the appeal to be taxed to the respondent. Searls, C., and Belcher, C., concurred. For the reasons given in the foregoing opinion so much of the judgment as appears to be based upon the payment by the treasurer, Broaded, of the auditor’s warrant on the school fund for $3,840, payable to C. H.

Delevan, is reversed, and a new trial is granted on the issue as to whether the defendant is accountable for the money paid on that warrant. As to the residue of the judgment not based upon the payment of that warrant, the order and judgment appealed from are affirmed. Costs of the appeal to be taxed to the respondent. Fitzgerald, J.,McFarland, J., De Haven, J. A petition for a rehearing having been filed, the following opinion was rendered thereon on the 24th of January, 1894: