Los Angeles herald., 1905-10-04
SUSTAINS DEMURRER IN
ADVERTISING LITIGATION
TIMEs-MIRRoR COMPANY SCORES
VICTORY
Suit of T. D. Fennessy to Restrain
Payment of Warrant Issued for Mu-
nicipal Legal Printing Practically
Thrown Out of Court

A recent suit brought by Thomas D
Fennessy against City Auditor Louis H
Schwaebe and City Treasurer w. H
Workman, to prevent them from pay
ing a printing debt owed the Times
Mirror company by the city, was yes
terday thrown out of court by Judge
Wilbur, when he sustained a demurrer
to the complaint.
The suit was the outgrowth of the
city printing contract awarded the
| Times more than a year ago. 1t was
later alleged that because of the size of
slug used by the Times company the
space measured more than 1t should
have. This accusation was brought by
Councilman Houghton, and Fennessy
was selected as the Los Angeles tax
payer to file the suit.
Yesterday the entire case was re-
moved from court and unless the at
torneys for the complainants file a new
complaint within five days the case will
be stricken from the docket.
Text of Decision
Following is Judge Wilbur's ruling
in part:
This is an action brought by tax
payer of the city of Los Angeles to re-
strain the issuance of a warrant to the
Times Mirror company in payment for
advertisements printed in pursuance of
a contract between the city of Los An
geles and said company.
1.-THE complaint is based upon the allie
cation that a claim has been allowed by
the city council of the city of Los An
geles for the sum of $3662.15, whereas
the actual amount due Is $15S6.02, and
no more.
1.-The allegation is that the work done
under the contract amounted to the
sum of $29, 1862; that all of said amount
has been paid by the city of Los An
geles except the sum of $15S6.02; that
claim was filed for the amount of $9662,
in addition to the previous payments,
and that the amount claimed was SPOTS
in excess of the amount really due,
owing and unpaid to the Times-Mirror
company.
THAT nevertheless and despite the
fact that said claim was for the sum of
SPOTS in excess of the amount really
due, the city council of Los Angeles in
advertently allowed the claim of $S662,
and the mayor of said city thereafter
paid claim for the full amount.
No Mistakes Shown
"If this allowance was really made by
mistake there is no showing in the COM
plant that the matter was called to the
attention of the city council or. that
they have in any way been requested to
correct their mistake in the matter.
However, it seems clear from the de-
cisions that the court has no power to
interfere unless positive fraud is al
legged.
''In this case it is sought by plaintiff
to recover by proving that the services
for which the money was paid were
never performed. Defendant procured
the money by proving before the proper
tribunal that the services had been per-
formed. Plaintiff now seeks without
attacking the judgment of the tribunal
which allowed the claim to recover
back the money by proving that the
services were never in fact performed.
1--WE are aware that in several states
such doctrine has been sanctioned, but
the rule has been long settled the other
way in this state, and we see no reason
to change it.
From the foregoing it is apparent
that the remedy is not with the court.
For that reason the demurrer will be
sustained without leave to amend un-
less the plaintiff within five days makes
application for such privilege upon
-