151 P. 1054 | Okla. | 1915
The defendants in error presented a claim to the board of county commissioners of Muskogee county in the sum of $535, which was disallowed in whole. An appeal was prosecuted to the superior court of that county, and upon a trial judgment was rendered in favor of the defendants in error and against Muskogee county for the amount of the claim, and interest until paid. To review that judgment the cause is brought here by petition in error and case-made.
A motion to dismiss the appeal is presented on the ground that the plaintiff in error is without right to maintain this appeal, and also for want of proper parties plaintiff in error. "Muskogee County, Oklahoma," is the plaintiff in error. The question raised by the motion is whether or not the appeal can be prosecuted in that name; in other words, in what name may a county sue and be sued. Section 320, Williams' Okla. Const., provides that each county in this state now or hereafter organized "shall be a body politic and corporate." Article 1, c. 16, sec. 1497, Rev. Laws 1910, provides: *345
"Each organized county within the state shall be a body corporate and politic and as such shall be empowered for the following purposes: First. To sue and be sued. * * *"
Section 1500 of this chapter prescribes the corporate name of the county and in what name it may sue and be sued, as follows:
"In all suits or proceedings by or against a county, the name in which a county shall sue or be sued shall be, 'Board of County Commissioners of the County of _____.' * * *"
At common law a county could neither sue nor be sued. It is only by virtue of statutory or constitutional authority that an action may be maintained either by or against it. A suit by or against a county must be in its corporate name; that is, the name prescribed in the statute or Constitution by which it may sue or be sued. 11 Cyc. P. P. 607; Board of CountyCommisisoners of Phillips County v. Churning,
In the State of Colorado there is a statute similar to section 1500, Rev. Laws 1910, supra. In the Churning Case,
"The statute provides no method for the enforcement of such a judgment; and neither directly nor remotely is the plaintiff in error interested in it, or in any disposition which might be made of it. The case is therefore improperly in this court, and the writ of error is dismissed."
In the State of Georgia the Constitution provides "that all suits by or against a county shall be in the name of the county." In Arnett v. Board of County Commissioners of DecaturCounty,
We conclude, from these authorities, that since the statute prescribed the corporate name of the county, a suit can only be prosecuted by it in that name, and therefore "Muskogee County, Oklahoma" cannot prosecute an appeal to this court; that such an appeal can only be prosecuted in the corporate name of said county, to wit, the "Board of County Commissioners of Muskogee County"; that there is no proper plaintiff in error in this cause; and that the motion to dismiss the appeal should therefore be sustained.
By the Court: It is so ordered. *347