AMADOR COUNTY v. J. A. BUTTERFIELD et al., 51 Cal. 526

By the Court: The action is brought upon the official bond of the County Treasurer of the county of Amador. In the complaint several breaches of the bond are set out—“ that he, Butter-field, did not perform all the duties of his said office of County Treasurer required by law, in this, that he did not safely keep * * * did not apply or pay out” the public moneys as required by law; that he did not keep or render an account of these moneys, nor disburse the moneys upon warrants issued by the County Auditor, etc.

The second defense found in the answer of the defendants (who are Butterfield and the sureties on his official bond), is as follows: “ They deny that the said defendant, John A.

Butterfield did not safely keep the said sum of $20,142.76, in said second amended complaint mentioned, or as much thereof as ever came to his hands, or any part thereof, as required by law; or that he did not keep or render an account of the receipt or expenditure of said money or any part thereof; or that the said sum of money, or any part thereof, has been lost to the plaintiff by reason of any act or misconduct, or neglect, failure, or refusal of duty, of the said defendant, John A.

Butterfield.” In this condition of the pleadings, judgment was rendered by the court below in favor of the plaintiff without a trial of the action. The judgment was entered for the plaintiff upon motion, upon the pleadings. The determination of such a motion is not a trial of the cause, and the motion cannot prevail if the answer on file contain a sufficient denial of the material allegations of the complaint. In such case the plaintiff can recover only upon proving the cause of action set forth in the complaint.

We are of the opinion that the second defense above recited was in itself a sufficient denial of the allegations of the . complaint, and that the motion for judgment should for that reason have been denied below. This view renders it unnecessary to consider other points relied upon in the argument. Judgment reversed and cause remanded. Remittitur forthwith.