Kelley

Writ of mandate to compel the defendant, as treasurer of the county of Glenn, to pay a warrant for $811.36, drawn upon the said treasurer by the county auditor, and payable to petitioner. Defendant had judgment in the court below, from which judgment plaintiff appeals.

At the trial the plaintiff or relator, read to the court his petition and the answer thereto, and rested his case. Thereupon defendant declined to introduce any evidence, and the cause was submitted to the court, and thereafter it filed written findings, specifying that the “contract alleged and set out in the answer of the defendant, and alleged as the contract upon which the claim of the plaintiff and relator is based, is ultra vires and void. ’ ’ The question involved in the case is this: Under the pleadings, upon whom did the burden of proof rest? Had the plaintiff moved the court for judgment upon the pleadings, he would, in effect, have admitted that all of the averments of the answer were true: Ward v. Flood, 48 Cal. 36 , 17 Am. Rep. 405 ; Fleming v. Wells, 65 Cal. 339 , 4 Pac. 197 ; People v. Johnson, 95 Cal. 474 , 31 Pac. 611 ; McGowan v. Ford, 107 Cal. 177 , 40 Pac. 231 . He did *487 not, however, thus…