
    LIVINGSTON et al. v. WIDBER, Treasurer.
    S. F. No. 370;
    December 28, 1896.
    47 Pac. 247.
    Mandamus—Defense.—Where, Pending an Appeal by a City Treasurer from an order directing him to pay certain coupons out of certain moneys paid in under protest, the action by the property owners, who paid in the money, to recover the same, is determined against them, the defense, to the issuance of the writ, of the pendency of such action, is unavailable.
    APPEAL from Superior Court, City and! County of San Francisco; James M. Seawell, Judge.
    Proceeding by one Livingston and others against one Widber, treasurer, etc., for a writ of mandate. There was a judgment for petitioners and defendant appeals.
    Affirmed.
    Harry T. Creswell for appellant; E. B. & George H. Mastick and Freeman & Bates for respondents.
   PER CURIAM.

The plaintiffs sought by this proceeding a writ of mandate commanding the defendant, as treasurer of the city and county of San Francisco, to pay certain coupons of the Dupont street bonds. The defendant pleaded as a defense to the proceeding that the moneys in his hands belonging to the Dupont street fund had been paid in under protest, and that the parties paying the same had instituted an action, entitled “Davis v. The City and County of San Francisco,” which was then pending in this court, and undetermined, for the recovery of the moneys so paid, and that for this reason he was entitled to retain the same until the determination of that action. The superior court, however, rendered judgment awarding the writ, from which he appealed. Since the appeal was taken, the action of Davis v. City and County of San Francisco, has been determined by this court against the plaintiff therein (115 Cal. 67, 46 Pac. 863), by which the defense alleged in the present action has become unavailing. The judgment is affirmed.  