Hume v. Kelly

• Decision Date: 27 January 1896
• Citation: 28 Or. 398,43 P. 380
• Parties: HUME, District Attorney, v. KELLY et al.
• Court: Oregon Supreme Court

43 P. 380

28 Or. 398

HUME, District Attorney, v. KELLY et al.

Supreme Court of Oregon

January 27, 1896

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by W.T. Hume, district attorney, against Penumbra Kelly and others. Judgment for defendants. Plaintiff appeals. Affirmed.

J.H. Hall, for appellant.

Zera Snow and J.W. Whalley, for respondents.

WOLVERTON, J.

This action was instituted in the name of the district attorney to recover upon the official bond of the defendant Penumbra Kelly, given as sheriff and tax collector of Multnomah county, Or., with the defendants Markle and McFarland as sureties. The bond was given to the state of Oregon, in the penal sum of $400,000, conditioned that "if the said Penumbra Kelly shall well and truly and faithfully perform and execute his duties as such tax collector, according to law, and according to the requirements of any law to be hereafter enacted, and pay over to the county treasurer of said county all moneys collected by him as such tax collector for the said year 1892," then the obligation to become void; otherwise, to be and remain in full force and effect. The defendant McFarland moved the court to require the plaintiff to make the complaint more definite and certain, and the defendants Kelly and Markle severally demurred thereto, each assigning substantially the same grounds, namely: First, that plaintiff has not legal capacity to sue; second, that the complaint does not state facts sufficient to constitute a cause of action; and, third, that the plaintiff is not the real party in interest. The motion was overruled, and the demurrers sustained. Subsequently the plaintiff moved the court for leave to amend the complaint by adding the state of Oregon and county of Multnomah as parties plaintiff in said action, and the defendant Markle moved for a judgment of dismissal. These motions came on to be heard at the same time; but by consent of the parties the plaintiff's motion was amended by striking therefrom the state of Oregon as a proposed party, and upon this state of the record the court disallowed the former and sustained the latter motion and thereupon rendered judgment against plaintiff, dismissing the complaint, with costs, from which judgment plaintiff appeals.

The corporations and persons entitled to sue and recover upon official undertakings of the nature of the one set out herein are appropriately and sufficiently designated by statute. Section 340, Hill's Ann.Laws, provides that "the official undertaking or other security of a public officer to the state, or to any county, city, or other municipal or public corporation of like character therein shall be deemed a security to the state, or to such county city, town, or other municipal or public corporation as the case may be, and also, to all persons severally for the official delinquencies, against which it is intended to provide." And section 341 provides that, "when a public officer, by official misconduct or neglect, shall forfeit his official undertaking or other security, or render his sureties therein liable upon such undertaking or other security, any person injured by such misconduct or neglect, or who is by law entitled to the benefit of the security, may maintain an action at law thereon in his own name, against the officer and his sureties, to recover the amount to which he may by reason thereof be entitled." These sections were intended to give a right of action upon the undertaking directly to the real party in interest, whether it be the state, a municipal or public corporation, or to a private individual. This construction is borne out by reading, in connection therewith, sections 343 and 344; and, indeed, such is the judicial interpretation thereof. See Habersham v. Sears, 11 Or. 436, 5 P. 208; Howe v. Taylor, 6 Or. 284; Crook Co. v. Bushnell, 15 Or. 169, 13 P. 886. Taxes levied for state and county purposes, when collected, belong to the county in which they are levied. The same may also be said of taxes levied for school purposes, until apportioned to the several school districts. The county becomes a debtor to the state to the extent of the state's levy apportioned to such county. Board of Com'rs of Multnomah Co. v. State, 1 Or. 359; State v. Baker Co., 24 Or. 359, 33 P. 530. The purpose of the action upon the undertaking being to recover for taxes levied for state, county, and school purposes, and collected by the defendant Kelly as tax collector of Multnomah county, that county would be a proper party plaintiff therein, although the bond runs in the name of the state of Oregon. Of this there can be no doubt.

It is claimed that the court below committed error in disallowing plaintiff's motion for leave to amend the complaint by adding Multnomah county as a party plaintiff and section 101, Hill's Ann.Laws Or., is invoked in support of the contention. It provides that "the court may, at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceeding to be amended by adding the name of a party or other allegation material to the cause, and in like manner and for like reasons, it may, at any time before the cause is submitted, allow such pleading or proceeding to be amended, by striking out the name of any party, or by correcting a mistake in the name of a party," etc. It has been settled by this court that, under the section quoted from, it is within the discretion of the trial court, at any stage of the case before the cause is submitted, to authorize such amendments as may be necessary to make the cause as intended by the original pleading, but not to insert a new and distinct cause of action or defense. Foste v. Insurance Co., 26 Or. 449, 38 P. 617. So that it is not permissible to allow an amendment which would substantially change the cause of action. We understand from the briefs of counsel, and are led to assume, that the court below disallowed the amendment, not in the exercise of its discretion, but solely upon the ground that it believed it had no power to grant the plaintiff leave to so amend. So that we will consider the question here as one of power in the court, and not as an abuse of its discretion in the premises. If the proposed amendment would substantially change the cause of action, it may be conceded that the court was without power to allow it; and the converse of the proposition may also be conceded. It seems the plaintiff instituted the action, in the exercise of his prerogative functions as the law officer of the state and of the several counties constituting his district, to recover in behalf of Multnomah county; not that he claimed an individual interest in the funds sought to be recovered, but for the reimbursement of the county for funds belonging to it collected by the defendant Kelly,...