15 Or. 169 | Or. | 1887
This is an action brought by Crook County, as plaintiff, against Bushnell, ex-county treasurer, and his bondsmen, as defendants, to recover the sum of-, upon his official undertaking as such treasurer. The complaint alleges that the defendant Bushnell was duly elected treasurer of Crook County; that he executed a bond in the usual form to the State of Oregon; that the other defendants became sureties thereon; and that the sums of money for which the action is brought came into his hands as such treasurer, and have not been turned over to his successor in office. The complaint does not allege that the plaintiff had obtained leave of the court to bring the action, nor that the money sought to be recovered was the property of the county. The defendants demurred to the complaint and moved for a nonsuit, both of which were overruled, and the defendants refused to plead further, whereupon the court rendered judgment as prayed for in the complaint; and from this judgment the appeal is brought to this court.
Two questions are raised for our consideration and determination : 1st. Could the plaintiff (Crook County) bring this action under the statute without first having obtained leave of the court? and 2d. Was the complaint insufficient in not showing that the money sought to be recovered was the property of the county?
Leave to bring action must be had. It is provided by the Code that: “When a public officer, by official misconduct or neglect of duty, shall forfeit his official undertaking or other security, or render his sureties thereon liable upon such undertaking or other security, any person injured by such misconduct or neglect, who
The judgment must be reversed and the cause remanded for further proceedings.