Hutchison v. Reclamation District No. 1619

Plaintiff sued in mandamus to compel the defendants to draw and issue to plaintiff their warrant upon the funds of the defendant Reclamation District in payment of a judgment in favor of plaintiff and against the District in the sum of $2,116, and interest, rendered on July 10, 1922, and becoming final on July 28, 1924. The defendants answered pleading the former judgment in bar to plaintiff’s right to mandamus and also pleading the bar of the statute of limitations. Judgment went for the defendants on both issues and the plaintiff has appealed upon a typewritten record.

In support of the judgment the respondents argue that inasmuch as the appellant in the former action sought mandamus to compel the issuance of a warrant, and as the court merely gave a money judgment against the District, we must assume that the court in that action found against the respondent’s right to mandamus and that the judgment is to that extent “res ad judicata.” It is also argued that as the present suit involves the same subject matter as the former

The controversy arose over the refusal of the Trustees of the District to pay appellant’s claim for services rendered to the District at the special instance and request of the Trustees. In the former action the Trustees claimed that the District was not liable because they had not formally contracted with the appellant for the performance of the work. Judgment was rendered against the District from which it appealed to the district court of the third district. That court held ( 67 Cal. App. 488 [ 227 Pac. 787 ]) that the Trustees having by resolution declared an intention to have the work done, one of them having by letter engaged appellant to perform it, all the members of the board having acquiesced in this action, the District having received the benefits, and the Trustees having drawn their warrants for partial payments for the work as it progressed, a contract to pay for the entire work was implied which was binding upon the District. A petition for a transfer to the supreme court was denied and the remittitur covering the affirmance of the judgment was filed in the superior court on July 28, 1924. In December, 1924, and again in January, 1925, the appellant herein demanded of the Trustees that they draw their warrant for payment of the judgment and interest. This demand having been refused this action was commenced to compel the Trustees to draw their warrant as demanded.

The situation is this: The plaintiff sued the District (a public corporation) for a money judgment and joined the Trustees in a prayer asking that they be required to draw a warrant on the District funds for the amount found due. The defendants answered pleading a misjoinder of parties and the Trustees moved for a nonsuit, which was granted. Findings were made against the District and the judgment went against the District alone. Nothing appears in either findings or judgment favorable to the Trustees except the notation of the dismissal as individuals.

Section 3453 of the Political Code, as amended in 1899, authorizes a direct action against the District for a money judgment. This section was thus amended following the decision of the supreme court in Hensley v. Reclamation District 556, 121 Cal. 96 [ 53 Pac. 401 ], which held that such an action could not be maintained. The effect of the amend

[2] Mandamus is an extraordinary remedy “in the nature of an equitable interference supplementing the deficiencies of the common law.” (Potomac Oil Co. v. Dye, 10 Cal. App. 534 , 537 [ 102 Pac. 677 , 678].) “Although classed as a legal remedy, its issuance is largely controlled by equitable principles.” (Duncan Townsite Co. v. Lane, 245 U. S. 308 , 312 [ 62 L. Ed. 309 , 38 Sup. Ct. Rep. 99 , 101, see, also, Rose’s U. S. Notes]; Arant v. Lane, 249 U. S. 367 , 371 [ 63 L. Ed. 650 , 39 Sup. Ct. Rep. 293 ].) It is a remedy which is awarded “not as a matter of right, but in the exercise of a sound judicial discretion.” (Duncan T. Co. v. Lane, supra; Fawkes v. City of Burbank, 188 Cal. 399 , 402 [ 205 Pac. 675 ]; Wilson v. Blake, 169 Cal. 449 , 454 [Ann. Cas. 1916D, 205, 147 Pac. 129 ]; California Highway Com. v. Riley, 192 Cal. 97 , 112 [ 218 Pac. 579 ].) Cases may arise “where the applicant for relief has an undoubted legal right, for which ‘mandamus’ is the appropriate remedy, but where the court may, in the exercise of a wise discretion, still refuse the relief.” (Wiedwald v. Dodson, 95 Cal. 450 , 453 [ 30 Pac. 580 , 581].) [3] “One who seeks the aid of the court in obtaining this remedy must come into court with clean hands.” (38 Cor. Jur., p. 574; Bashore v. Superior Court, 152 Cal. 1 , 4 [ 91 Pac. 801 ]; Turner v. Fisher, 222 U. S. 204 , 209 [ 56 L. Ed. 165 , 32 Sup. Ct. Rep. 37 ].) [4] The writ may be denied when the respondent shows a willingness to perform the act without coercion

It is hardly necessary to say that in each particular above noted the special proceeding in mandamus differs from the ordinary action at law and that when the legislature, by the amendment of 1899, authorized a direct suit against the District it did, as pointed out by the supreme court in San Francisco Sav. Union v. Reclamation Dist., 144 Cal. 646 [ 79 Pac. 374 ], provide a new remedy to the creditor of the District, whereas, prior to the amendment, the creditor’s only remedy was to sue the Trustees of the District in mandamus to compel them to issue a warrant upon the funds of the District (or to compel the levy of an assessment), in which action he was not entitled to a trial of the issues of fact by a jury as of right and in which action the granting of relief was a matter of discretion in the court and not a matter of right. [7] By the new remedy provided in the amendment to section 3453 of the Political Code the creditor was entitled as a right to a trial by jury of the issues of fact involved when the action was at law and was entitled as of right to a judgment against the District whether the issue was before the court or the jury if he established the

It might be added that it would be difficult to conceive of a case where the Trustees could be properly joined as parties defendant with the District in an action of this kind. Mandamus would only lie when the Trustees had failed to perform a duty imposed upon them by law, and it must be predicated upon a prior demand to perform that duty. A demand that they draw a warrant to pay a judgment not yet rendered would be an idle act and a refusal to comply with the demand would be fully justified. It would seem that, when the legislature gave the creditor another remedy through the amendment to section 3453, it reduced the remedy authorized by section 3457 to the ordinary action of mandamus covered by sections 1085 and 1086 of the Code of Civil Procedure.

The plaintiff, in the original action, did not follow either of these remedies alone, but he endeavored to avail himself of both. He joined the Trustees as parties defendant with the District itself and pleaded facts sufficient to bring him under section 3453, but he failed to plead facts sufficient to entitle him to any remedy in mandamus. [8] This is so because he not only failed to allege that he had no other plain,

The issues presented to the trial court in the first action were as to the first cause of action whether an express contract had been executed, and, if so, whether it had been legally executed on the part of the District; and as to the second cause of action, whether the District was legally liable upon an implied contract. Having determined these issues and having come to the conclusion that the plaintiff was entitled to a money judgment against the District it is fair to assume that the court declined to issue a writ of mandamus against the Trustees for any of the following reasons: That the Trustees were improperly joined as parties defendant; that judgment against the District was a plain, speedy, and adequate remedy, that all questions of fact having been determined and the legal liability having been adjudicated a warrant would follow as of course in satisfaction of the judgment without a writ of mandarinus; or that the defendants satisfied the court that the judgment would be paid without the issuance of a writ. It is impossible to conceive of how mandamus for a warrant could be denied on its merits where the plaintiff was adjudged to be entitled to the sum of money named in the judgment.

Though the record discloses that the trial court in the first action did not affirmatively pass upon the applicant’s right to a writ of mandate, it also discloses that the court did give to the applicant affirmative relief in the nature of a judgment against the District. It follows from what we have heretofore said that because of that remedy the court could not have properly granted the additional remedy of mandamus, and whether the action was dismissed as to the Trustees, or whether the plaintiff was nonsuited as to them,

[10] It is unnecessary to analyze the cases cited by respondent which support the general rule that a judgment is conclusive not only as to the subject matter in controversy, but also as to every other matter that was or might have been litigated in the action. It is sufficient to say that this rule is not always applicable literally, but that “what is really meant by this expression is that a judgment is conclusive upon the issues tendered by the plaintiff’s complaint.” (Concannon v. Smith, 134 Cal. 14 , 18 [ 66 Pac. 40 , 42]; Brown v. Brown, 170 Cal. 1 , 6 [ 147 Pac. 1168 ]; Lang v. Lang, 182 Cal. 765 , 768 [ 190 Pac. 181 ]; Linforth v. Montgomery, 195 Cal. 49 , 58 [ 231 Pac. 735 ].) Thus where a right has accrued subsequent to the former trial and an issue was not tendered or determined in the former trial and was not necessary to a complete disposition of the issues tendered, it could not be said that the former judgment would in every case be conclusive as to that issue.

[11] We find no merit in respondents’ pleas of the statute of limitations. The action is to compel the Trustees to perform a duty imposed upon them by law—to draw a warrant to pay a final judgment. The action was brought within a few months of the time when the judgment became final. It is not based upon the original claim for services rendered—that claim has long since been adjudicated by the judgment in appellant’s favor. In support of the pleas respondents advance the argument that as the issue was raised in their answer, the allegations of which the trial court

[12] The general rule is stated in 34 Corpus Juris, page 755, that “the recovery of a judgment creates a new debt or liability, distinct from the original claim or demand, and this new liability is not merely evidence of the creditor’s claim, but is thereafter the substance of the claim itself.” (Emphasis ours.) Here the original claim was for $2,422 based upon an implied contract to pay the reasonable value of services rendered. Upon trial of that issue the court determined that the reasonable value of the services was #2,116 and judgment for that amount was entered on July 10, 1922, and drew interest at the statutory rate from the date thereof. This judgment became final by the filing of the remittitur on July 28, 1924. On December 11, 1924, demand was made upon the Trustees for the payment of the judgment and a similar demand was made on January 29, 1925. This action was commenced May 11, 1925, demanding payment of the judgment with interest thereon from the date of its entry— July 10, 1922. The only question of the application of the statute of limitations involved here is, therefore, whether this suit was commenced within the statutory time following

The only authority upon which the respondents rely in support of their plea is San Francisco Sav. Union v. Reclamation Dist. No. 124, 144 Cal. 639 [ 79 Pac. 374 ], In that case the supreme court had before it the question of the effect of the amendment to section 3453 of the Political Code, made in 1899. Actions had been brought in mandamu,s to compel the trustees to levy an assessment to pay claims against the District and these had all resulted in judgments favorable to the Trustees. When the amendment to section 3453 was enacted in 1899 the claimants commenced an action under that section against the District to adjudicate these claims, all of which had arisen prior to May 10, 1885. In holding that the amendment of 1899 was not retroactive the supreme court said that the right to resort to the remedy of mandamus having been long barred by the statute of limitations, “It would be an impossible construction of the amendment of 1899 to hold that it not only gives the right to maintain an action against the district upon these stale claims, but also revives the right to maintain the suit for a writ of mandate to compel an assessment which had been previously barred by the statute of limitations. Such a construction could never be based upon implication merely, but would require express and distinct words to that effect.” The court did not have before it a case, such as we have here, where the action under section 3453 was brought within the statutory period and judgment rendered against the District. We must hold that such a judgment follows the general rule of all judgments upon unliquidated claims and that it created a new debt or liability against the District. Such being the case in any action on that judgment, the statute of limitations would begin to run from the time when the judgment became final and not from the time when the original debt was created.

Judgment reversed.

Sturtevant, J., and Koford, P. J., concurred.