G.R. No. 1078. November 07, 1905

A decision overruling a demurrer to the complaint in this action is
reported in 1 Philippine Reports, 551. The nature of the case is
therein stated. The demurrer was overruled on the allegation in the
complaint that the salary of the plaintiff had been paid to the
defendant, to be by him paid to the plaintiff, and on the assumption
that the money was in the defendant’s hands at the time the action was
commenced. After the demurrer was overruled the defendant answered,
denying that he had the money at the time the suit was commenced. The
parties entered into a written agreement concerning the facts in the
case, in which agreement it is stated:

“That by direction of the Auditor of the Philippine
Islands the respondent, previous to the service of process upon him in
this action, had covered all of said funds appropriated for the payment
of the salary of the deputy (assistant) chief of the fire department of
the city of Manila for the months of July, August, September, October,
and $16.67 for part of November, 1902, withheld, applied, and credited
as aforesaid, into the Insular Treasury.”

It therefore now appears that at the time this suit was commenced
the defendant, as disbursing officer, had no money in his hands to
which the plaintiff had any claim. There could therefore be no duty
resting upon him to pay any money to the plaintiff. The case is in the
same condition as it would have been had the money appropriated for the
payment of this salary never been paid to the defendant. It is too
clear for argument that mandamus would not lie in such a case to compel
the defendant as disbursing officer to pay money which he had never
received. What the law would be had the defendant had in his possession
as disbursing officer this money at the time the action was commenced,
and had afterwards disposed of it, it is not necessary to inquire. No
such case is here presented. Final judgment should be entered in favor
of defendant, with costs. So ordered.

Arellano, C. J., Torres, Mapa, Johnson, and Carson, JJ.,concur.