State v. BARKER, 4996

• Citation: 178 P.2d 401, 51 N.M. 51
• Case Date: March 19, 1947
• Court: Supreme Court of New Mexico

51 N.M. 51
178 P.2d 401

STATE
v.
BARKER et al.

No. 4996.

Supreme Court of New Mexico.

March 19, 1947.

178 P.2d 402, 51 N.M. 52

Charles B. Barker, Henry J. Hughes and M. W. Hamilton, all of Santa Fe, for appellants.

C. C. McCulloh, Atty. Gen., Wm. R. Federici, Asst. Atty. Gen., and David W. Carmody, Dist. Atty., of Santa Fe, for appellee.

LUJAN, Justice.

This is an appeal from a judgment on a bond given to secure a recount of votes in the 1944 general election.

The defendant, Barker, and David W. Carmody were rival candidates for the office of District Attorney of the First Judicial District. Barker filed an application with the State Canvassing Board for a recount of the votes in 20 precincts or election districts in Rio Arriba County under the provisions of 56-614, 1941 Comp., and gave a bond for $1,000 under the provisions of Sec. 56-615, with his codefendants as sureties, and made it payable to the State of New Mexico. Upon his application to the State Canvassing Board it issued summons, as asked, and Barker had service thereof made and recounts were had in all precincts except one where the election officials claimed there were ballots in the box that had not been cast. The recounts showed errors had been made in some boxes and in the remainder there were no changes. The errors were not sufficient to change the result. Barker failed to pay the sheriff or any of the election officials and the Attorney General brought suit on the bond in the name of the

51 N.M. 53

State to recover the mileage and fees claimed due.

The first point urged by the defendants is that the state is not a proper party and has no interest in this action. The statute is silent as to who shall be the obligee and the defendants voluntarily made it to the State of New Mexico.

Section 19-101 rule 17(a) of our Rules of Civil Procedure reads: 'Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the state so provides, an action for the use or benefit of another shall be brought in the name of the state.'

In Reagan v. Dougherty, 40 N.M. 439, 62 P.2d 810, we stated the test to determine whether one is a real party in interest is: (1) whether he is the owner of the right to be enforced; or (2) whether he is in position to release and discharge the defendant from the liability upon which the action is grounded. In this case we cited Whiteman v. Taber, 205 Ala. 319, 87 So. 353, as our authority on the first proposition, and Broderick v. Puget Sound Traction, Light & Power Co., 86 Wash. 399, 150 P. 616, for the second. The errors of the election officials were not sufficient to change the result of the election, so there is no liability on the part of the...