21 Ind. 77 | Ind. | 1863
This was an action by the State upon the relation of Curtin, treasurer of the county, against Snyder and his sureties, upon his official bond as former treasurer. Judgment for the plaintiff for 50 dollars.
We are met at the threshhold of the case with, the objection, that an action will not lie in such case upon the relation of the treasurer, and this objection seems to be well taken. Whatever may have been the provisions of former statutes on the subject, no statute now in force has been cited, and we are aware of none, which authorizes the treasurer to be the relator in such cases.- By section 128, 1 G. & H. p. 102, it is provided that the county auditor, on being instructed to that effect by the Auditor of State, or the Board of County Commissioners, shall cause suit to be instituted against the treasurer and his sureties in certain cases. By section 132, it is provided, that, in suits against the treasurer and his sureties, the auditor shall be a competent witness. This provision would have been entirely superfluous, had it not been contemplated that the auditor should be a party to the suit as relator. The general system of checks and balances contemplated by the revenue laws, and intended to enable the auditor to properly charge the treasurer with what funds he receives, also strongly favors the construction, that suits upon an ex-treasurer’s bond should be brought upon the relation of the -auditor, and not of the incoming treasurer. But it is claimed, that if the action was wrongly brought in this respect, it could have been amended below, and will be deemed amended here. But, in our opinion, such a radical amendment as a total change of one of the parties to the action, or,
Per Curiam. — The judgment below is reversed, with costs.