State v. BARKER

• Decision Date: 19 March 1947
• Docket Number: No. 4996,4996
• Citation: 178 P.2d 401,51 N.M. 51
• Parties: STATE v. BARKER et al.
• Court: New Mexico Supreme Court

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 theState 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 State. The bond was given to secure the fees of the election officials and the sheriff in the event the errors were not sufficient to change the result.

Minnesota has a similar statute. There if one desires to file a contest and secure a recount he must give a bond in the sum of $250, conditioned that he will pay the fees and expenses of the election inspectors who are also the custodians of the ballots. The statute, like ours, is silent as to who shall be the obligee. An unsuccessful candidate initiated contest, asked for a recount, and gave a bond payable to the contestee, one Chisholm, and secured a recount.

The contestant was unsuccessful and the inspectors, not parties to the bond, joined in an action thereon, and answering the defense of the obligors that only the party named could maintain the action, the Minnesota Supreme Court in Moede v. Haines et al., 66 Minn. 419, 69 N.W. 216, 217, said: 'The statute, it will be seen, fails to provide for an obligee in the bond, and in such a case it might be held that an obligee is unnecessary, or that the state is the proper party to whom the obligation is to be made payable. * * * and the only point made by respondents as to this is that no one but Chisholm can maintain an actionon the bond. We do not agree with counsel on this. The bond provided by the terms of section 193 is wholly statutory, and is given for the protection and benefit of the persons to whom the examination and inspection of the ballots is referred. No one else is interested, and, as the real parties in interest, the inspectors should have the right to maintain the action, precisely as if no obligee had been named, or the obligation had run to the state.'

The case was dismissed because of misjoinder of parties plainti...