Montgomery v. Board of Administration, Etc.

Respondents have filed a petition for rehear ing and present two questions that require further notice. They first urge that the judgment in the declaratory relief action has become final, is binding on intervener and precludes her from recovering anything in this action. They next urge that our statement in the opinion that intervener, as successor in interest of A. R. Kennedy, “is entitled to his retirement pay” has the effect of awarding her $32.50 a month for life, when, under an optional selection made by Kennedy during his lifetime, she was only entitled to receive a smaller monthly payment until a reserve fund is exhausted. We will consider the two questions in the order stated.

Mrs. Kennedy was not a party to the declaratory relief action. There is nothing in the record before us indicating that she either actively or tacitly participated in its prosecution or actually knew that it was filed or prosecuted. Our order merely reverses the judgment against her and has the effect of remanding her action for new trial. The effect of the judgment in the declaratory relief action may be inquired into and determined at such time. Under the very unsatisfactory condition of the…

Marks, J.

This is an action to compel respondents to pay appellants certain employees' pension or retirement benefits claimed to have accrued under the provisions of the charter and ordinances of the city of San Diego. The trial court held that none of the appellants were entitled to receive pensions and this appeal followed.

A. R. Kennedy was retired on November 1, 1935, and received his pension up to the date of his death. His widow, Anna Maude Kennedy, succeeded to his pension rights. Except where clarity requires, we will make no distinction between deceased and his widow, the intervener.

The first charter of the city of San Diego (Stats. 1889, p. 643, amended Stats. 1925, p. 1351) provided for a retirement plan for certain employees of the city. These provisions were reenacted in the present charter (Stats. 1931, p. 2838) without any substantial change affecting the rights of the parties before us. We will, therefore, not concern ourselves with the older charter provisions and all references will be to the present charter.

Article nine of the present charter contains the following provisions:

"Section 141. City Employees' Retirement System. The Council of The City of San…

This is an action to compel respondents to pay appellants certain employees ’ pension or retirement benefits claimed to have accrued under the provisions of the charter and ordinances of the city of San Diego. The trial court held that none of the appellants were entitled to receive pensions and this appeal followed.

A. R. Kennedy was retired on November 1, 1935, and received his pension up to the date of his death. His widow, Anna Maude Kennedy, succeeded to his pension rights. Except where clarity requires, we will make no distinction between deceased and his widow, the intervener.

The first charter of the city of San Diego (Stats. 1889, p. 643, amended Stats. 1925, p. 1351) provided for a retirement plan for certain employees of the city. These provisions were reenacted in the present charter (Stats. 1931, p. 2838) without any substantial change affecting the rights of’the parties before us. We will, therefore, not concern ourselves with the older charter provisions and all references will be to the present charter.

Article nine of the present charter contains the following provisions:

In 1927, the city council of San Diego adopted ordinances setting up its retirement…