United States ex rel. McDonald v. Shoup

• Decision Date: 11 March 1889
• Citation: 2 Idaho 493,21 P. 656
• Parties: UNITED STATES EX REL. MCDONALD, DISTRICT ATTORNEY, v. SHOUP ET AL
• Court: Idaho Supreme Court

21 P. 656

2 Idaho 493

UNITED STATES EX REL. MCDONALD, DISTRICT ATTORNEY, v. SHOUP ET AL

Supreme Court of Idaho

March 11, 1889

PARTIES TO ACTION-COUNTY MUST BE SUED IN CORPORATE NAME.-An action by a county must be in its corporate name. Since the 1st of June, 1887, the date when the Revised Statutes of Idaho went into effect, an action for the benefit of a county, and where the demand sued upon is a property of the county, must be in the corporate name of the county.

REFORMATION OF INSTRUMENT SUED ON.-A bond payable to the people of the United States will not sustain a judgment in favor of the people of the United States of the territory of Idaho. Before such judgment can be allowed, the instrument must be reformed.

GENERAL DENIAL-UNVERIFIED COMPLAINT.-A complaint by a public officer in his official capacity, need not be verified, but the answer to it must be verified, unless it also be by a public officer in his official capacity, but if the complaint be not in fact verified, a general and not specific verified answer may put in issue the main allegations of the complaint under section 4183 of the Revised Statutes.

(Syllabus by the court.)

APPEAL from District Court, Lemhi County.

This is an appeal from the judgment of the district court in and for Lemhi county, rendered April 26, 1888, in favor of the plaintiffs, and against the defendants severally, in the sum of $ 500 each. The action was commenced July 14, 1887. The defendant on the twenty-eighth day of December, 1887 appeared by their attorney, C. A. Wood, Esq., and filed a demurrer to the amended complaint, which amended complaint had been filed on the nineteenth day of that month. The complaint set up a bond executed by the defendants, November 26, 1886, in the penal sum of $ 2,500, which the defendants promised to pay in sums of $ 500 each, conditioned for the appearance of one Thomas McKinney, to answer to a criminal charge, in whatsoever court, etc., and to hold himself amenable to the orders, etc. The proceedings in which the bond is taken were regular, and authorized the taking of such bond as plaintiffs say this was intended to be. The bond was in form as described by section 499 of the Criminal Code of Idaho territory (Revised Laws, 8th Sess.), except that it was, by its terms, payable to "the people of the United States," instead of to "the people of the United States of the territory of Idaho." The complaint, which was not verified, admits this deficiency, but alleges that the defect was caused by mistake of all parties to it; and that the prosecutor and all the defendants intended it to be in statutory form; and prays that (1) the bond be reformed by adding to it, after the words "United States," the words "of the territory of Idaho," as the obligees of said bond; (2) that the plaintiffs have judgment upon the bond. To this complaint the defendants demurred, and state as grounds of demurrer: 1. That the plaintiffs have not the legal capacity to sue; 2. that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled by the court, and the defendants excepted; whereupon the defendants answered as follows: The defendants, in answer to the complaint of the plaintiffs herein, "deny each and every allegation therein contained," which answer was duly verified. On the twenty-sixth day of April, 1888, the plaintiffs by their counsel, said district attorney, moved for judgment on the pleadings, on the ground that the answer was only general and not a specific denial of the allegations of the complaint. The motion was sustained, and judgment was entered against the defendants in the sum of $ 500 each; to all of which the defendants excepted.

Reversed.

Charles A. Wood, for Appellants.

If a condition prescribed by statute is omitted, the bond is void, although the surety is benefited. (Alexander v. Bates, 33 Ga. 125; State v. McCown, 24 W.Va. 625.) If the recognizance is not authorized by law, or if the court had no authority to take it, it is void. (Keppler v. State, 14 Tex. App. 173; Phelps v. Parks, 4 Vt. 488; Nicholson v. State, 2 Ga. 363.) If the answer was sham or frivolous, or improper for any other reason, it should have been stricken out; but so long as the answer remained on the records, denying any of the material allegations of the complaint, the court had no authority to order judgment on the pleadings. (Reich v. Mining Co., 3 Utah, 254, 2 P. 703: Prost v. More, 40 Cal. 347; Hicks v. Lovell, 64 Cal. 14, 49 Am. Rep. 679, 27 P. 942.)

R. Z. Johnson, Attorney General, and Henry Z. Johnson, (James H. Hawley, of Counsel), for Respondents.

As the complaint shows that the defendants secured the discharge of their principal by the execution of the bond in question, neither said principal nor the defendants were prejudiced by the clerical error in the bond. (People v. Myers, 1 Idaho, 357; Huffman v. Koppelkom, 8 Neb. 344, 1 N.W. 243; Kopplekom v. Huffman, 12 Neb. 95, 10 N.W. 577; State v. Soudriette, 105 Ind. 306. 4 N.E. 860; Gorman v. State, 38 Tex. 112, 19 Am. Rep. 29; Murfree on Official Bonds, sec. 62.) The sureties cannot set up as a defense the fact that the amounts in which they justified were insufficient under the statute. The justification is no part of their contract. (People v. Carpenter, 7 Cal. 402; People v. Shirley, 18 Cal. 121; People v. Penniman, 37 Cal. 271; Murdock v. Brooks, 38 Cal. 603; Brandt on Guaranty and Suretyship, secs. 439, 440.) Although the complaint was not verified, the territory being plaintiff, the statute required the defendants to verify their answer. (Rev. Stats., sec. 4199.) A general denial in a verified answer is sham and frivolous, and may be stricken out or disregarded. ( People v. Hagar, 52 Cal. 171, 175, 182; Lumber Co. v. Richardson, 31 Minn. 267, 17 N.W. 388.) Whenever the answer fails to deny any of the material allegations of the complaint in such form as to put the same in issue, the plaintiff is entitled to judgment upon the pleadings. ( Doll v. Good, 38 Cal. 287; Fitzgibbon v. Calvert, 39 Cal. 261; Felch v. Beaudry, 40 Cal. 443.)

BERRY J.

OPINION

BERRY, J.

(After Stating the Facts.)--The first question is whether the action is brought in the name of the proper plaintiff. It is conceded that the county of Lemhi, Idaho territory, is the party in interest, and for whose benefit the action is brought. Whatever was the practice as it stood prior to the first day of June, 1887, the statutes on which that practice rested were either repealed, or superseded, by the Revised Statutes, which went into effect June 1, 1887. By section 4090 all actions must be brought in the name of the party in interest. By section 1732 all acts respecting the property and rights of the counties shall be in the names of the respective counties. And by section 1733 counties may sue and be sued. It seems,...