United States ex rel. McDonald v. Shoup

21 P. 656 | Idaho | 1889

BERRY, J.

(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the practice as it stood prior to the first day of June, 1887, the statutes on which that practice rested were either repealed, or superseded, by the Revised Statutes, which went into effect June 1, 1887.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 bond, even if, as the respondent contends, the answer was not sufficiently specific. But was not the answer sufficient to put in issue each material fact of the complaint? Whatever may be thought of the intention of the parties, we must still look to what they did, and for this, first, to the pleadings. The allegations of the complaint are that by mutual mistake there was a defect in stating in the bond the name of the obligee; and which allegation, if adjudged to be true, might cure that alleged defect in the judgment. The answer, as to every material allegation in the complaint (Idaho Rev. Stats., secs. 4183, 4184), is good, as a general denial. But it is not a specific denial of each allegation controverted; hence, if the complaint is verified, the answer is open to the objection of insufficiency. The learned judge in the court below seems to have taken the view that the complaint was verified, and that the answer should be wholly disregarded. While it is not specifically stated for what cause he ignores the answer, we may suppose it was for want of compliance with the statute (section 4183), in not being specific in denial of each material allegation of the complaint controverted. If such holding is correct, it must be for the reason that in this case a general answer is denied to the defendants. Section 4199 of the Revised Statutes provides that when an action is brought in the name of an officer of the territory, and for the public, the complaint need not be verified; but the defendant, unless he also be an officer, or answering in his official capacity, must verify his answer. The statute goes np further on that point than merely to excuse such officer from verifying Ids pleading, and of requiring unofficial parties to verify. The statute does not “verify the complaint,” as the respondent claims. The officer is excused from verification for reasons growing out of the fact that his relations to the subject matter are official, and not personal. If he desires, he may verify; and then his pleading will be a verified pleading, and will entitle him to whatever advantage may result from that fact. But if he do not verify, his pleading, for all purposes, except as to the single matter of verification alone, differs in nothing from an ordinary unverified pleading. In this case the defendants were entitled to interpose either a general or specific denial of tbe material allegations of tbe complaint, controverted by the defendant. (Rev. Stats.., sec. 4183, snbd. 1.) The answer was good, and the action of the court below was therefore, error. From the view taken of the points here noted, it is apparent that the judgment cannot be sustained. Judgment reversed.