I dissent. I concur in the views expressed by Mr. Justice James of the district court of appeal in his opinion, as follows:
"I think that the judgment in this case should be affirmed. It is made to appear by the findings that prior to the commencement of this action all of the money owing by the city of Santa Barbara to Clark had been paid out upon demand filed and warrant issued in favor of said Clark. The filing with the city auditor of the transcript of judgment made in favor of the plaintiff imposed upon that officer, under the *Page 802 provisions of section 710 of the Code of Civil Procedure, the ministerial duty of drawing a warrant for any money then owing by the city of Santa Barbara to Clark in favor of the court from which such transcript of judgment had come. As is said in the case of Ruperich v. Baehr, 142 Cal. 190, [75 P. 782], cited by Mr. Justice Shaw in his opinion, prior to the adoption of section 710 of the Code of Civil Procedure, municipal corporations were not subject to any of the statutory provisions relating to attachment or garnishment, and I am of the opinion that the added enactment must be given the effect only of prescribing a ministerial duty to be performed by an officer of the municipality, for the nonperformance of which no liability can accrue against the public corporation. If upon the giving of the notice to the auditor or equivalent officer, an assignment of title to the fund, equitable or otherwise, is to be considered as having been made, and that notice to the officer is notice to the municipality, then, of course, the conclusion reached by Mr. Justice Shaw must be the correct one. But in the view I take of the matter, the demand of the city's creditor is not to be deemed as having been assigned, nor is the city bound by the notice given to the auditor in such a way as to impose upon it responsibility for his willful or negligent act performed in the premises. It had been determined that Clark, plaintiff's judgment debtor, should be paid the money, and that the city council had regularly approved his demand as it was required to do, and the treasurer of the city had made payment of it on a warrant regularly issued to him, signed and countersigned by the proper officials. Plaintiff had sought to intercept payment of the money by the filing of his transcript of judgment with the auditor, and the auditor, disregarding the law defining his duties in such a case, had refused to pay any heed to the claims of the plaintiff. If the plaintiff here, under such conditions, is entitled to the writ, as is decided by the majority opinion, then the city may be compelled to pay again a debt which it appears it has already regularly discharged. The act required to be performed by the auditor was a ministerial one affecting his official conduct alone, and for the benefit of private individuals and not the public. It was not such an act, ordinarily considered, at least, as would *Page 803 make the municipality responsible for the nonperformance of it."
If these views be correct, as I believe they are, I do not see how the city could maintain an action for the recovery of the money already paid to Canfield and Starbuck. The authorities cited in the majority opinion to sustain this view do not appear to me to be in point. The city has no interest whatever in the money, and is in no way bound by the acts of the auditor in the matter. It seems clear to me that the granting of the relief sought cannot possibly accomplish any beneficial purpose, and that if the auditor has improperly drawn his warrant with the result that plaintiff has been damaged, plaintiff's sole remedy is an action against the auditor for damages.
Henshaw, J., concurred. *Page 804