Davis

This appeal was originally heard in the district court of appeal for the second appellate district. The justices of that court being unable to agree upon a decision, the cause was transferred to this court.

Our consideration of the record and the arguments advanced has convinced us of the soundness of the views expressed in the opinion of Shaw, J., concurred in by Allen, P. J., and we hereby adopt said opinion.

The opinion reads as follows:

A further suggestion may be added to what is said in the foregoing opinion regarding the second point urged by the respondent, viz., that the issuance of the writ would be unavailing for the reason that the fund out of which petitioner was entitled to be paid has been entirely exhausted. In our judgment, the opinion quoted is correct in declaring that this is not a consideration affecting the rights of the parties in the proceeding before us. It _ cannot now be determined whether or not the city treasury will ever be able to meet a warrant, if one be issued to plaintiff. One way—we do not mean to suggest that it is the only way—in which the necessary funds might become available is through an action by the city to recover the amount…

dissenting.—I dissent. I concur in the views expressed by Mr. Justice James of the district court of appeal in his opinion, as follows:

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.