United States ex rel. McDonald v. Shoup
United States ex rel. McDonald v. Shoup
Opinion of the Court
(After Stating tbe 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the practice as it stood prior to the first day of June, 1887, the statutes on which that practice rested were either repealed, or superseded, by the Revised Statutes, which went into effect June 1, 1887.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, therefore, that the county is not only authorized to sue in its own name, but is required to do so; and that this action should have been brought in the name of Lemhi county. But it is objected further that the bond does not run to the county of Lemhi, or even to the people of the territory of Idaho, but .to the people of the “United States/5 and that such a bond was unauthorized by the laws; that as to the meaning of the parties to this bond the court cannot from the words alone take judicial knowledge that the bond was intended to run otherwise than it was in fact drawn. The bond, if a judgment was to be rendered upon it in favor of the people of the territory of Idaho, or for the benefit of Lemhi county, should have been reformed. It was not reformed; and, as it stood when judgment was rendered, would not sustain a judgment in favor of the people of the United States in the territory of Idaho. A bond in this form was unknown to the laws; and only on reformation could it have any validity whatever. But it is claimed that it is alleged in the complaint that it was the intention of all parties to it to make it payable as provided by section 498 of the Laws of the Eighth Session, and that such fact is admitted. Even if such were the case (which the defendants do not admit), the bond should have been reformed as prayed in the complaint, before a judgment should have been rendered. Iu some way it should appear in the action of the court that the promise was for the benefit of the party demanding judgment upon such promise. There should have been a formal reformation of the
Reference
- Full Case Name
- UNITED STATES ex rel. McDONALD, District Attorney v. SHOUP
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- Paetibs to Action — County must be Sued in Corporate Name.— An action by a county must be in its corporate name. Since tbe 1st of June, 1887, tbe date when the Revised Statutes of Idaho went into effect, an action for tbe benefit of a county, and where tbe demand sued upon is a property of the county, must be in tbe corporate name of the county. Reformation of Instrument Sued on. — A bond payable to tbe people of the United States will not sustain a judgment in favor of tbe people of tbe United States of tbe 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 bis 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 tbe complaint be not in fact verified, a general and not specific verified answer may put in issue tbe main allegations of the complaint under section 4183 of the Revised Statutes. (Syllabus by tbe court.)