61 Tex. 54 | Tex. | 1884
The court below did not err in overruling the general and special exceptions to plaintiff’s petition. It would have been a more technical compliance with the statute in preparing the bond to have added to the name of D. E. Wingate his official designation. Still the bond is payable to the person holding the office of county judge, and was examined and approved in open court as required by law, which fact was certified to by D. E. Wingate himself, as county judge, he holding that office at the time, and the bond was properly filed and indorsed by the clerk of the county court. All of these facts taken together constituted a substantial compliance with the statute, and impressed upon the instrument the character of an official bond. They rendered it as certain that the bond was payable to the county judge as if the fact had been stated in the body of the instrument itself in so many words.
The statute requires that all suits by and against a county shall be in its corporate name. E. S., 1200.
This suit was brought in the name of the obligee of the bond for the use of the county of Orange, the beneficiary of the instrument. This was in effect bringing the action in the corporate name of the county; for it has often been held by this court that when suit is brought by one person for the use of another, the latter is the real plaintiff, and the former, who is only nominally a party, may withdraw from the suit, and it can be conducted and carried on by the person for whose use it was originally brought, and no new party is thereby made. Martel v. Somers, 26 Tex., 551; Price v. Wiley, 19 Tex., 142.
Whatever judgment might be recovered by Wingate in the present suit would inure to the benefit of the county, and the defendant could not object that the county did not make itself a party in a different manner. It would have derived no more benefit from such a manner of bringing the suit than from the course it pursued in having the suit brought nominally by the party to whom the bond is required to be made payable for the use of the county.
This disposes of the objection that Reed was not shown to have
As to the other ground, we know of no rule requiring that the petition in cases like the present should show on its face that the county had authorized the suit to be brought. The presumptions are in favor of the authority being rightly exercised when the proper officer is in charge of the suit, and it was alleged that Wingate was still county judge at the date of bringing the suit. Moreover, it has always been held by this court that such an objection must be taken by plea in abatement. It cannot avail upon demurrer, where, as in this case, the want of authority does not appear affirmatively on the face of petition. There is no error in the judgment, and it is affirmed.
Affirmed.
[Opinion delivered February 5, 1884.]