Holmberg

These appeals, one from the judgment and the other from an order of court denying defendant’s motion to vacate the judgment entered and render a different judgment upon the findings, were taken by Alfred Davis, as the then city clerk and auditor of the city of Santa Barbara, for whom, upon suggestion of his death, A. C. Holmberg, his successor in office, has, by orders made pursuant to rule XVI of the supreme court, [ 160 Cal. li , 119 Pac. xii ], been substituted as appellant.

The facts upon which this proceeding for the issuance of a writ of mandate to be directed to the city clerk and auditor of the city of Santa Barbara is based are set forth in an opinion of the supreme court filed in the ease of Ott Hardware Co. v. Davis, 165 Cal. 795 , [ 134 Pac 973 ], wherein on a former appeal prosecuted by plaintiff the court reversed a judgment entered in favor of defendant. This appeal is from the judgment claimed by respondent to have been entered in accordance with the opinion of the supreme court upon the going down of the remittitur, whereas appellant, as grounds for a reversal, insists that, as rendered, it is contrary to the views contained in said opinion and not supported by…

I concur in the judgment. I do this reluctantly, and only because our supreme court in Ott Hardware Co. v. Davis, 165 Cal. 795 , [ 134 Pac. 973 ], has established the law to govern the ease. I am still of the opinion that under the facts shown no liability was created against the city of Santa Barbara. The reasons are expressed in the dissenting opinion of the supreme court as filed in the case cited.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 29, 1917.