APPEAL from a judgment of the Superior Court of San Joaquin County, and from an order denying a new trial. Frank H. Smith, Judge. The facts are stated, and referred to, in the opinion of the court. Ashley & Neumiller, for Appellants. U. S. Webb, and C. W. Norton, for Respondents. Nicol & Orr, for Defendant, D. M. Town. MCLAUGHLIN, J.-This is an action to oust defendants from the office of justice of the peace of O'Neal township, in San Joaquin county. The court rendered judgment ousting defendants Rea and Alling, and declaring that defendant Town was entitled to the office. From such judgment and an order denying their motion for a new trial, defendants Rea and Alling prosecute this appeal. The court found that defendant Town and one Harelson were duly qualified justices of the peace for said township for the term ending January 5, 1903, that said Harelson died December 10, 1901, and that no successor was thereafter elected or appointed to fill the position thus made vacant. As conclusion of law it was found that defendant Town was entitled to hold over under section 879 of the Political Code. Aside from the office involved, this finding and conclusion constitute the only difference between this case and the case of People ex rel. Hardacre v. Davidson and Peters, ante, p. 100, [83 Pac. 161]. On the authority of that case it must here be held that neither of the appellants is entitled to hold said office. The only question remaining is whether this court is bound to consider or determine the right of defendant Town to hold said office upon this appeal. The appellants do not assail the sufficiency of the evidence to support the finding, nor do they specify any errors in the admission of such evidence. The only assault made on the conclusion of law and judgment is that involved in the affirmative assertion of their right to hold such office. In fact, counsel for appellants, in their brief, admit that, if neither of their clients be held elected to such office, it can make no difference to either of them whether defendant Town is or is not entitled to hold the office. The relator has not appealed, and we do not see that the appellants are interested in the question. So far as they are concerned, the object of the action "is to determine their right to hold the office which they are charged with usurping." Whether the defendant Town is entitled to the office, or whether in the controversy between the relator and said defendant the court committed any error, is a matter which does not concern the appellants, and upon which they are not entitled to be heard. Under the authorities we do not think it is either the privilege or duty of this court to consider errors relating to that portion of the judgment in favor of defendant Town. (Code Civ. Proc., sec. 475; People v. Abbott, 16 Cal. 366; People v. Campbell, 138 Cal. 17, [70 Pac. 918]; People v. Flemming, 100 Cal. 541, [38 Am. St. Rep. 310, 35 Pac. 163]; People v. Superior Court, 114 Cal. 478, [46 Pac. 383]; March v. Barnet, 114 Cal. 375, [46 Pac. 152]; Coyle v. Lamb, 123 Cal. 264, [55 Pac. 901]; McCreery v. Everding, 44 Cal. 285; McDonald v. Taylor, 89 Cal. 45, [26 Pac. 595]; Tripp v. Duane, 74 Cal. 91, [15 Pac. 439]; Ball v. Nichols, 73 Cal. 195, [14 Pac. 831]; Western Lumber Co. v. Phillips, 94 Cal. 56, [29 Pac. 328]; Dougherty v. Henarie, 47 Cal. 9; Smith v. Hawkins, 127 Cal. 121, [59 Pac. 295].) While all claimants and intruders may be made parties to an action of this character, still, on appeal, the judgment will be considered several as to each, and errors not prejudicing appellants cannot be considered. (Code Civ. Proc., sec. 808.) It must be admitted that the result is somewhat anomalous, when considered in the light of the decisions in the cases of People v. Davidson et al. (Nos. 104 and 108), ante, pp. 96, 100, [83 Pac. 159, 161], but rules of appellate practice so well established cannot be abrogated by this court. For the foregoing reasons, the judgment and order appealed from are affirmed. Chipman, P. J., and Buckles, J., concurred. A petition for a rehearing of this cause was denied by the district court of appeal on November 25, 1905, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 26, 1905. [Civ. No. 77. First Appellate District.-October 30, 1905.] AZRO N. LEWIS et al., Executors of Will of MIRANDA LUX, Deceased, Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Respondents. ACTION TO RECOVER MONEY PAID-ILLEGAL TAX UPON ESTATE-FILING OF INVENTORY-COMPULSION-SUPPORT OF FINDING APPEAL-ABSENCE OF EVIDENCE.—In an action to recover money paid to the county clerk as an illegal tax, under compulsion, to secure the filing of an inventory and appraisement of the estate of a deceased person, a finding that the payment was involuntary and compulsory must be held upon appeal to have been sustained by the evidence, in the absence of a bill of exceptions containing the evidence before the court. ID.-SUFFICIENCY OF COMPLAINT-ULTIMATE AND PROBATIVE FACTS.Though the allegation in the complaint that the payment was involuntary is of an ultimate fact to be found by the court, upon which the plaintiff's right of recovery depends, yet the sufficiency of the complaint is to be determined by the probative facts pleaded, which support such ultimate fact. ID. EXACTION OF ILLEGAL FEES AS A CONDITION OF FILING DOCUMENT— COMPULSORY PAYMENT REMEDY BY MANDAMUS INADEQUATE.-The exaction by a clerk or other official, against the protest of a party, of illegal fees as a condition of filing a document in his office which such party is entitled to have filed, renders the payment of such fees compulsory, notwithstanding such party could have procured a writ of mandate compelling the officer to file the document without paying the fees demanded. The right to file the document was immediate; and the payment of the fee under the alternative of bringing such action and incurring the expense and delay thereof is not voluntary. ID.-ACTION AGAINST CITY AND COUNTY-INTEREST NOT ALLOWABLE BEFORE JUDGMENT.-Where the county clerk had paid the illegal tax exacted into the treasury of the city and county and the action to recover it is against the county, no interest is allowable therein before the entry of judgment. ID.-PETITION TO MODIFY JUDGMENT AS TO INTEREST-POINT NOT URGED UPON HEARING RIGHT OF COURT.-This court has the right to decide any point before the judgment becomes final, and will do so after its opinion has been filed, affirming the judgment, when its attention is called to the fact that the judgment upon its face contravenes a statute or a well-established rule of law; and the fact that appellant did not urge upon the hearing of the appeal that the allowance of interest before judgment was improper will not prevent the granting of appellant's petition to modify the judgment in that respect. APPEAL from a judgment of the Superior Court of City and County of San Francisco. J. C. B. Hebbard, Judge. The facts are stated in the opinion of the court. HARRISON, P. J.-The plaintiffs, as executors of the last will and testament of Miranda W. Lux, deceased, presented to the county clerk of the city and county of San Francisco an inventory and appraisement of the estate of their testatrix on July 31, 1895, and requested him to file the same. The clerk refused to receive or file the document unless the plaintiffs would first pay to him the sum of $770 as a fee therefor. This demand was made by reason of the provisions of section 163 of the act entitled: "An act to establish a uniform system of county and township governments," approved March 24, 1893. (Stats. 1893, p. 389, c. 234.) The plaintiffs protested against the said demand, claiming the right to have the inventory and appraisement filed by him without the payment of any fee in addition to what they had already paid; but, notwithstanding said protest, the clerk refused to receive or file the same or permit it to be filed except upon the prepayment of said sum of money. By reason of such refusal, and in order to enable them to continue in the exercise of their official duties as such executors, the plaintiffs thereupon paid said fee to the clerk, and it was by him paid into the city and county treasury. The act under which the said fee was demanded was thereafter declared invalid (Fatjo v. Pfister, 117 Cal. 83, [48 Pac. 1012]), and the plaintiff thereupon brought the present action to recover the money so paid by them. The cause was tried by the court, and in addition to the above facts the court found, in accordance with allegations in the complaint, that the payment of said money by the plaintiffs "was wholly involuntary and compulsory on the part of said executors; that the said executors could not otherwise than by making such payment procure the acceptance of said return or the filing of said inventory and appraisement; that if they had not paid the said pretended additional fee and illegal tax of $770, in accordance with the aforesaid 2 Cal. App.-8 demand of said clerk, he would not have received or filed the said inventory and appraisement, or permitted the same to be filed in said court, and there would not and could not have been any effectual return of said inventory and appraisement within the time required by law or at any time. or at all; and that by reason of the nonreturn thereof the said executors would have become prima facie liable to removal from their office as such executors, and to other penalties under the statutes in such case made and provided, and could not have escaped said liability except by pleading and proving the facts." Judgment was thereupon rendered in favor of the plaintiffs, and the defendant has appealed therefrom upon the judgment-roll alone without any bill of exceptions. In the absence of a bill of exceptions containing the evidence before the court, the finding that the payment was involuntary and compulsory must be held to have been sustained by the evidence. It is, however, contended by the appellant that the complaint is insufficient; that the averment therein that the payment was involuntary is only a legal conclusion, and that the facts connected with the payment as set forth in the complaint from which that conclusion is drawn show that the payment was voluntary. Whether the payment was voluntary or involuntary was an ultimate fact to be found by the court from the evidence presented at the trial, and the allegation in the complaint that it was involuntary was an allegation of the ultimate fact upon which the plaintiffs' right of recovery depended; but, as in the case of a cause of action depending upon fraud or negligence, the allegation of this ultimate fact would have been insufficient against a general demurrer unless supported by an averment of the probartive facts, and the sufficiency of the complaint is therefore to be determined by a consideration of these probative facts. It is further contended by the appellant that, inasmuch as the clerk had no authority to demand a fee for filing the document, and the plaintiffs could have compelled him under a writ of mandate to file the same, their payment of the money instead of resorting to an action at law to compel him to receive and file it rendered it a voluntary payment, for the reason that it was made with the full knowledge |