Lewis

The plaintiffs, as executors of the last will and testament of Miranda W. Lux, deceased, presented to the county clerk of the city and county of San Francisco an inventory and appraisement of the estate of their testatrix on July 31, 1895, and requested him to file the same. The clerk refused to receive or file the document unless the plaintiffs would first pay to him the sum of $770 as a fee therefor. This demand was made by reason of the provisions of section 163 of the act entitled: "An act to establish a uniform system of county and township governments," approved March 24, 1893. (Stats. 1893, p. 389, c. 234.) The plaintiffs protested against the said demand, claiming the right to have the inventory and appraisement filed by him without the payment of any fee in addition to what they had already paid; but, notwithstanding said protest, the clerk refused to receive or file the same or permit it to be filed except upon the prepayment of said sum of money. By reason of such refusal, and in order to enable them to continue in the exercise of their official duties as such executors, the plaintiffs thereupon paid said fee to the clerk, and it was by him paid into the city and county…

After the opinion herein was filed, the appellant presented a petition for a modification of the judgment therein ordered by limiting the affirmance of the judgment appealed from to that portion which awards to the plaintiffs a recovery of the money originally paid to the clerk, but without any interest thereon; and in support of this petition has called our attention to the cases of Savings etc. Soc. v. San Francisco, 131 Cal. 356 , [ 63 P. 665 ], and Columbia Sav. Bank v. Los Angeles, 137 Cal. 467 , [ 70 P. 308 ], in which the supreme court has held that in an action against the state or any of its subdivisions to recover moneys paid under protest, the court is not authorized to include in its judgment interest thereon during any of the time that elapsed prior to the entry of the judgment. At the hearing of the appeal herein the argument on behalf of the appellant was confined to the question of its liability to the respondents, and neither in the oral argument nor in the printed brief on behalf of the appellant was our attention called to the question presented by the above petition, or to the form of the judgment under consideration, and in their reply to the petition the…