sufficiency and validity of claims which parties present against the state. The supreme court has gone a long way in this direction. That court has held that legislative appropriations are not conclusive on these officers, and gives to them the power and imposes on them the duty to determine whether the appropriations are legitimate or illegitimate, constitutional or unconstitutional. In re Appropriations, 13 Colo. 316, 22 Pac. 464. It was therefore incumbent on the relator, by the terms of his alternative writ, to state the character, amount, and source of the claim which he presented, and state as in a pleading his cause of action, in order that it might be determined, from the issues raised by the answer and the proof offered, whether the claim was or was not a legitimate one. This was a matter which the auditor had a right to consider and a right to determine. If he failed in his duty, the party must state a cause of action against him that issue might be taken and proof offered. In this aspect of the case, the judgment ought not to have been entered. The alternative writ exhibited nothing but a naked statement of the appropriation, and in fact the relator relied entirely on the theory that the act of April 30th was a specific appropriation of $1,750, and that the auditor was without discretion. Under the decision in Re Appropriations, this could in no event be true, because, if the auditor should determine, on inspecting the voucher and the proof, that the claim was not constitutional in the sense of being a casual deficiency for which the legislature could provide, he not only had the right, but it was his duty, to reject the claim, regardless of the legislative direction. Whether this be or be not true, we still hold that on its face the alternative writ must contain averments showing a good cause of action in the sense of a statement of the claim which the party seeks to enforce against the state. It lacked those averments, was therefore insufficient, and the judgment on the pleadings ought not to have been entered. The answer states, and we must take it as true, that the $102,000, resulting from the sale of these bonds, and applicable to the payment of the claims designated in the first section of the act, has been absorbed by warrants lawfully issued on audit by the board. The board acted within the scope of its authority. The auditor violated no rule, but complied with the law when he issued his warrants to pay the claims which the board had passed on. Therefore the appropriation of April 30th was only an appropriation running to that identical fund, and the auditor can lawfully issue no warrant which will be a claim on the general revenues of the state, and which will be payable otherwise than out of the casual deficiency fund. Since this is true, and the fund has been lawfully and legally exhaust ed, we do not see how, when the relator has failed to act, he can now demand a warrant from the auditor. He did not present any claim to the auditing board which was not paid. Neither did he, while those funds were in the treasury, present his claim to the auditor, and demand a warrant payable out of that fund. We are quite unable to see how the relator could sit idly by, even if he had a claim, and permit the disbursement of the fund, and now demand of the auditor the issuance of a warrant which there is no money to pay, and which the auditor cannot lawfully or legally issue. Suppose the auditor does issue his warrant for $649.32, it will only be issued on a fund which has been exhausted and in which there is no money. It is a fund which has been lawfully and legitimately exhausted. It was paid out on warrants which the auditor had a right to draw, and which were, as against him, conclusively determined to be valid by the action of the board to which was committed authority to determine the validity of the claims payable out of it. Having done only his duty, we are wholly unable to direct him to do an unlawful thing, issue a warrant on an exhausted fund, which will apparently make a claim against the state which the relator is without right to enforce. His claim was only against the casual deficiency bond fund. That has been legally and legitimately exhausted. If the relator has lost any rights. or has failed to collect his pay, it has been by reason of his neglect, and he may not now call on the state auditor or the courts to aid him in the premises. We therefore conclude for this reason that judgment ought not to have been entered on the pleadings. The state complains of the mode adopted by the relator to bring Lowell, the present appellant, into the litigation. It will be remembered that the proceeding was begun against Parks, who was then state auditor, and it ultimately continued and was concluded as against Lowell, who was his successor in office. Lowell was brought in on a motion to substitute, because the proceeding was against the official rather than the person, and because in the alternative writ the order ran against Parks without describing him as auditor; and the attorney general therefore contends that the proceedings should for these reasons be dismissed. We cannot assent to the conclusion. As we understand it, both courts have considered the rule to be that, where a proceeding or an action is begun against an official to compel the performance of an official duty or the discharge of an official obligation, a change in the person holding the office will not of necessity nor even generally defeat the action; but it may be continued against the successor, and the judgment, if recovered, be made ultimately effectual. The defect in the alternative writ in the description of the officer is unimportant, because Parks came in and answered, and his answer described him as state auditor, and he rested his defense on his right as such to resist the relator's claim. This would cure any defect in the alternative writ, where the motion was made for judgment on the pleadings, and it appeared that the proceedings were started against the defendant as an individual, and he answered as auditor, and set up a defense which he could only interpose because of his official capacity. The same answer can be made, and with like effect, to the objection to the procedure adopted to bring Lowell in. The state insists that there should have been something either by way of service of the order or the service of some writ, either one or both of which would answer the purpose of process in order to bring the incoming auditor into the case. We do not intend in this case to lay down what the exact practice should be under other conditions, or under conditions which might generally exist. It is a wholly unimportant consideration, because, after the motion which Lowell made was disposed of, he filed an answer; and we know of no reason why the filing of an answer by that officer should not be quite as effective to estop him from complaining of the want of process as a like proceeding would on the part of an individual who came in and took issue, and then complained that no summons had brought him into court. In the one case, as in the other, the appearance is equally as effective to give the court jurisdiction. This disposes of the errors discussed in the briefs of counsel which require discussion or decision. The judgment ought not to have been entered. As we view the record, it is impossible to make a case on the proof which would entitle the relator to a peremptory writ, and final judgment will therefore be entered in this court in favor of the appellant. Judgment reversed, and final judgment ordered. Reversed. THOMSON, P. J., dissenting. (121 Cal. 385) In re HAYMOND. (Cr. 436.) (Supreme Court of California. July 6, 1898.) DISBARMENT OF ATTORNEY-EVIDENCE-GROUNDS. 1. An accusation charging an attorney with conspiring with the attorney for a defendant accused of murder to sell to a newspaper, during the trial, a confession from defendant, to be procured by his attorney, and attempting to sell a purported confession, which he said he could have attested by the district attorney and the judge, is not sufficient to disbar him. 2. An accusation against an attorney in disbarment proceedings is in the nature of a criminal charge, and all intendments are in favor of the accused. 3. Conspiring with the attorney of one charged with murder to publish, during the trial, a confession of defendant secured by his attorney, is not an offense under Pen. Code, § 95, making punishable an attempt to corruptly influence a juror, or one drawn as a juror, by means of any paper exhibited otherwise than in the regular course of proceedings. 4. An attorney may be disbarred where transactions in which he was not employed professionally show him to be so wanting in integrity that the legal business of others cannot be safely intrusted to him. In bank. An application was made at the instance of the Bar Association of San Francisco to disbar Edgar B. Haymond. Accusation dismissed. William Fifield, for Bar Ass'n. Crittenden Thornton, for respondent. TEMPLE, J. Application at the instance of the Bar Association of San Francisco. It is charged that the accused has violated his oath of office and his duty as an attorney, in that he has failed to maintain the respect due to the courts of justice, and has not discharged his duty as an attorney and counselor to the best of his ability. It is recited that one Albert F. G. Veresenecockockhoff was being tried in department 12 of the superior court of the city and county of San Francisco upon a charge of the crime of murder. He was being defended by three counsel, one of whom was B. W. McIntosh, Esq., who had been duly admitted to practice law. Several days were occupied in impaneling a jury, during which time, though some jurors had been accepted and sworn, the panel was incomplete. The Daily Examiner was a newspaper published daily in San Francisco, and was a paper of general circulation in the city, and likely to be read by the judge and jury which were engaged in said trial. During the trial, and while McIntosh was defending the said defendant, he informed respondent that Veresenecockockhoff had been approached by a representative of the Examiner, and offered $10,000 for a confession of guilt on the part of the said defendant, to be published while the trial was pending. Respondent did not believe such a price had been offered, but thought such a confession could be sold to the newspaper for $2,000 or $3,000. "Thereupon respondent and McIntosh entered into a scheme, whereby said McIntosh should procure a confession of guilt from his client, the said Albert Hoff, and the respondent should negotiate, or attempt to negotiate, a sale thereof for money to the said Daily Examiner for publication in said newspaper while said trial was in progress." The next day McIntosh procured what purported to be such a confession, and which respondent believed to be such. Respondent undertook to attempt a sale of it to the newspaper for $2,000, to be published while the trial was in progress. The respondent accepted the employment, and attempted to effect a sale, but failed to do so. During the negotiations the respondent was informed that the Daily Examiner would purchase no confession "unless it were hedged about with all the formalities of law, attested by the district attorney and a judge of the superior court, to which the respondent replied that he (respondent) was authorized to comply with such conditions." Respondent was then informed that the Examiner would pay $750, and no more. This closed the negotiations. So far as appears, Haymond never did receive the confession, and certainly did not sell it, or cause it to be published. Although Haymond never did receive or sell a confession,-and, so far as appears, no confession was ever made,the fact that he attempted to make such a sale was published during the said trial in all the daily newspapers published in the city and county of San Francisco. No doubt such publication tended to some extent to embarrass the court in the trial. Such a publication was not intended by the respondent. No answer has been made by the accused, but the matter was presented on demurrer. The committee insist with the greatest earnestness upon the charge that the accused offered to sell the confession, and agreed that it should be attested by the district attorney and a judge of the superior court, as a ground for expulsion. They say: "It amounts to saying that the district attorney and a judge of the superior court will attest or certify a confession of guilt of the man on trial for his life, which is to be then sold to a newspaper for publication while the trial is going on. A more gross imputation upon a court or judge cannot be imagined." In this they charge respondent failed to maintain the respect due to courts and judicial officers. This accusation is in the nature of a criminal charge, and all intendments are in favor of the accused. The accusation is not sufficient if, all its statements being true, the accused could be innocent. It does not appear, and is not charged, that Haymond offered to procure such a certificate, or asserted that he could do so. It is simply charged that a representative of the Examiner demanded such a confession, and that Haymond was willing to comply with the condition. A construction favorable to innocence must be given to this, if possible; and I think it naturally indicates no more than that Haymond and his principal were willing. This charge cannot, therefore, be sustained. The most plausible ground upon which a disbarment is asked, in my opinion, is that respondent entered into a scheme or conspiracy with McIntosh, in which the latter was to do an act violative of his duty to his client and to the court. They were to publish a confession which would increase the difficulty of the court to get a jury, and would also be placing before jurors already sworn evidence not introduced at the trial and in court. It is contended that this would be violative of section 95 of the Penal Code. But, plainly, other facts would have to be shown in addition to those already alleged to bring the case within that section. It would certainly be unprofessional for one engaged to defend a person accused of crime to attempt to get evidence before a jury in that mode, whether it were favorable or not. And it would constitute a gross violation of his duty to his client to publish in that mode evidence which would be injurious to his client. It must be remembered, however, that Haymond was not an attorney in the case, that he was not acting as an attorney and was not employed because of his profes sional character. True, if the transaction showed him to be so wanting in integrity that the legal business of others cannot be safely intrusted to him, he should be disbarred. But not every reprehensible transaction will be ground for disbarring an attorney. This matter was very thoroughly considered in Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, and particularly in the dissenting opinion of Justice Field. Upon this general proposition I do not understand that there was a difference in that case. All agreed that an attorney could be disbarred, not only for professional misconduct, but for such misconduct outside of his profession as shows want of integrity and trustworthiness. But Justice Field contended that when the alleged misconduct involved the commission of a public offense, for which the attorney might be prosecuted criminally, that respondent should not be required to make any answer by which he might criminate himself, and that he could not be disbarred for an act constituting a crime involving moral turpitude, but outside of his professional duty, until he had been tried and convicted. Does the accusation charge the respondent with an offense involving such moral delinquency as would affect his trustworthiness as an attorney? It certainly was not wrong for Haymond to receive the confession of Veresenecockockhoffsometimes called Hoff-if no inducements or threats were used to obtain it. Having it, no law would prevent him from publishing it. It might have made it more difficult to obtain a jury. But so does every publication of the evidence that a crime has been committed. Yet newspapers are permitted to publish such news. I see no more objection to the publication by Haymond than by a daily newspaper. The accusation does not show a conspiracy to procure a confession from Hoff. Haymond's first connection with the affair is upon the proposition that Hoff desired to make it. We are not at liberty to suppose that it was obtained by dishonest practices, or that Haymond knew that a defense was being made which was inconsistent with the confession. There is no such charge in the accusation, and our present knowledge as to what defense was made is not to be attributed to Haymond. Suppose Hoff was defended by honest and able counsel, as we must presume he was, and that upon a full statement of his case, and a consideration of the evidence, he had been advised, and himself believed, that he had no defense except the plea of insanity. Suppose his line of defense had been fully determined upon, and also that it involved a full admission of the fact of the homicide. Upon that supposition, it would be difficult to specify what there was wrong in the conduct of the respondent. True, most attorneys would scorn to act as brokers in such a case. But we are not trying questions of taste. It is true, no such facts are stated in the accusation, but the question on demurrer is, does the accusation negative the possibility of innocence? And then we are not to attribute knowledge to the accused of the wrong on the part of McIntosh unless it is so averred. Why should we presume that Hoff had been imposed upon, or that the alleged confession was bogus, or that its publication would interfere with any defense that would be made; or, if all these possible facts were true, that Haymond knew of them? It is always an unpleasant thing to disbar an attorney. The committee have stated their reluctance to move in the matter. They have presented their views fairly, and with malice to none. And, although convinced that the charge should not be sustained, I think the committee deserve the gratitude of the courts and of the profession for the manner in which they have performed their unpleasant duty. The accusation is dismissed. 1. After plaintiff introduced a large amount of evidence, defendant suggested that, as there were more than 100 causes of action requiring evidence, it then be determined whether plaintiff's evidence in the causes already tried would warrant the expenditure of time necessary to hearing all causes of action. Thereupon, by consent of plaintiff, argument was had on the case as it stood. Defendant objecting to introduction of other evidence, the objection was sustained. It did not appear that plaintiff desired to introduce other evidence. Held, that plaintiff's consent concluded him from objecting that the court stopped the introduction of further evidence. 2. The agents and directors of a co-operative life insurance society chosen by the members of the society to conduct its affairs cannot, in the absence of fraud, be held responsible by a member after the insolvency of the society for money paid to the society, and paid out by it under its articles and rules. 3. Where the directors of a co-operative life insurance society honestly believe it to be incorporated, and so represent it, such a representation is not fraudulent, although the society be not legally incorporated. 1 Rehearing denied. Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco. Action by Daniel H. Perkins against Charles H. Fish and others. From a judg ment for defendants, plaintiff appeals. Affirmed. T. C. Spelling (Reddy, Campbell & Metson, of counsel), for appellant. Chickering, Thomas & Gregory and Edward R. Taylor, for re spondents. CHIPMAN, C. This action is brought to recover the sum of $83,704.15, alleged to have been paid by plaintiff and his assignors to defendants while acting as the agents and managers of the so-called "Home Benefit Life Association." Defendants had judgment, from which this appeal is prosecuted on bill of exceptions. The cause was tried by the court without a jury. Plaintiff introduced a large amount of testimony, oral and documentary, covering over 450 folios of the printed transcript. The bill of exceptions then contains a statement as follows: "At this point it was suggested to the court by counsel for the defendants that as there were more than one hundred causes of action, each one of which would require evidence on the part of plaintiff to sustain it, that it might be well to determine at this stage whether or not it was advisable to further proceed in the trial until ascertaining whether plaintiff had made such proof on the causes of action already tried as would warrant the consumption of time necessary to hearing all the causes of action. Thereupon, plaintiff's counsel assenting thereto, argument was had by counsel on both sides of the case as presented; the counsel for defendants, in order to get the matter properly before the court, then and there objecting to the introduction of any further evidence; and on the 31st day of August, 1896, the court filed and caused to be filed in said action, and entered in the minutes of said court, an order in words and figures following, to wit: "The objection of defendants to the introduction of any further evidence is sustained, and the action is ordered dismissed,'-to which order and ruling of the court plaintiff by his attorney then and there ob Jected and duly excepted." 1. It is now claimed as error that the cour stopped the introduction of any further evidence by plaintiff, and ordered a judgment of dismissal. The record discloses no formal motion for nonsuit by defendants, nor does it show that plaintiff had other testimony to offer, or desired to offer other testimony, either before argument upon defendant's suggestion, or after the ruling of the court; nor did plaintiff assign any reasons for objecting to the order. The situation is anomalous, and yet we do not think the court erred in acting on the suggestion as though plaintiff had closed his testimony, and was willing to have the court pass upon its sufficiency to support the complaint. Whether the court rightly decided the merits of the case as presented is another question presently to be noticed. We concur with plaintiff that where there is a good cause of action stated, as the court here must have held there was in overruling the demurrers, the plaintiff cannot be arbitrarily stopped against his consent in the midst of the introduction of admissible evidence in support of his allegations. No appellate court ever laid down a rule that would thus leave litigants at the mercy of trial courts. Nor do we think the trial court in this case did any such thing. It is manifest from the record, we think, that counsel and court all proceeded upon the understanding that the court might, upon the evidence as it then stood, determine the merits of plaintiff's case. Plaintiff's consent must be held to conclude him; and to hold otherwise would be to hold that plaintiff intentionally led the court into the commission of the error of which he now seeks to take advantage. We are unwilling to impute to counsel for plaintiff any such motive. The cases cited in relation to nonsuiting a plaintiff before concluding his evidence, or upon an opening statement, are not in point. 2. The theory upon which the complaint proceeds is that this association was never legally incorporated, for the reason that there was no statute law authorizing its organization as a corporate body. It is claimed that the association never became even a de facto corporation, because it failed to do the acts required by section 437 et seq. of the Civil Code; and that defendants, in assuming to form a so-called "corporation," as they undertook to form it, acted wholly outside any statutory permission or authority, and their efforts were utterly abortive and void. It is claimed that plaintiff (and plaintiff's assignors) paid to defendants at sundry times certain sums of money, induced thereto by the false and fraudulent representations of defendants, and under the belief, willfully and falsely engendered and created by defendants, that the association was a legal corporation organized under the laws of the state. It is hence contended that defendants became and are individually liable for the money thus received by them. Defendants claim to have organized the corporation under the provisions of section 593 of the Civil Code and the sections immediately following; that section 451 of the same Code was in force at the date of the organization by which the corporation thus formed was declared not to be an insurance company in the sense and meaning of the insurance laws of this state, as set forth in section 437, supra, et seq., and was exempt from the provisions of all existing insurance laws of the state; and that, if any doubt existed theretofore, it was entirely removed by the act of March 19, 1891 (St. 1891, p. 126), and particularly section 3 of that act, which, it is claimed, validated the said corporation, and recognized its existence as a legal corporate body. The questions involved in these conflicting contentions are numerous, and lead into a very wide field of corporation law, where the decisions are not by any means harmonious. From the view we have taken of the case, we do not find it necessary to follow counsel in their somewhat extended excursion. The evidence shows that defendants formed a corporation whose declared purposes and objects were both lawful and commendable; and it is not questioned that the articles of incorporation were in due form in all respects. The articles declared: "That the purposes for which it is formed are to associate together persons for the purpose of equalizing the risk of death, and to pay to the nominees of such members as may die stipulated sums of money, to be collected from surviving members upon the assessment or co-operative plan; to do any and everything requisite, necessary, or convenient for accomplishing the said purpose." Immediately upon filing certified copy of the articles with the secretary of state, officers were elected, by-laws adopted, and circulars containing the same, in which a full statement of the plan upon which the business of insuring the lives of members was to be conducted was embodied, as well as other forms of advertising literature, giving the names of the officers and directors, were given broadcast to the public and intending members. It was clearly stated in the articles and appeared in many of these documents what were the purposes and objects; that the company had no capital stock, and was not organized for profit; that the cost of the insurance was to be met by assessments, and these would depend upon the number of deaths and the age of the insured; that the directors were to be chosen by the members, and had the management of the affairs of the corporation. The members were kept informed from time to time by printed annual statements of the business affairs of the company, and they had access to its books at all times. A similar organization was formed in 1880, of which the present corporation was spoken of as a reincorporation. The tenth annual statement for 1890 showed as follows: Total income Death losses paid..... Expenses, including salaries, commissions, advertising, and all other items Reserved fund in bank. $804,747 07 $575,000 00 178,021 14 ...... 41,713 01 10,012 92 $804,747 07 This income was paid to the corporation by members by way of assessments to meet losses accruing by the death of members and for expenses. It was paid out by the corporation for these purposes in accordance with its plan, and pursuant to the direction of its governing board of directors who were chosen by the members. The directors were themselves |