Coffman v. Parker , 11 Kan. 9 ( 1873 )

The opinion of the court was delivered by

Bkeweb, J.:

This was an action on the bond of a treasurer of a school district. It was brought by the present treasurer in his own name, as such treasurer, against his predecessor, to recover a balance not paid over. The first and main question is, whether such action must be in the name of the district, or may be in the name of the treasurer, as plaintiff. The' money belongs to the district, and not to the treasurer. The district is the real party in interest. Hence, by the general rule of the statute the district should be the plaintiff. Code, § 26. Is there any statutory provision which would take this case out of the general rule ? Section 28 provides that a person expressly authorized by statute “may bring an action in his own name,” and also, that “officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way.” This of itself throws no light on the question, but simply directs our examination to the statutes authorizing suits generally upon official bonds, and the particular statutes concerning the powers of school district treasurers. Section 686 of the code contains the general provision concerning suits on official bonds; but that does not help the present action, for it simply provides that the “party injured, or who is by law entitled to the benefit of the security,” may bring an action in his own name. This of course in the present .case would be the district. Turning now to the statute concerning school districts, we find by § 24, page 920, Gen. Stat., that every school district is made a body corporate, with power to sue and be sued. By § 36 of same act, in case of any breach of the treasurer’s bond the director is required to commence a suit in the name of the district, and on his failure so to do any householder in the district may cause like action to be prosecuted. Thus far there is no room for question. The remaining section, and that which is claimed to justify this suit, is § 39. That reads thus:

“Sec. 39. If any district treasurer shall refuse or neglect to pay over any money in the hands of such treasurer belonging to the district, it shall be the duty of his successor in office to prosecute without delay the official bond of such treasurer for the recovery of such money.”

The argument made is, that because it is the-duty of the treasurer to “prosecute,” it is his right to prosecute in his own name. We fail to see any force in this argument. The object of this statute is to impose upon one particular officer the especial duty of protecting the rights of the district in this matter. The treasurer is named because it is his duty to receive the balance from his predecessor, and because he of all men would know whether such balance was paid over. It does not attempt to regulate the form of the action,, or designate the party in whose name it must be brought. It does not “expressly authorize” the treasurer to sue in his own name, nor is he an “officer authorized by law to sue” in any particular name. The obvious intention of the legislature was, in all possible cases, to bring the real party in interest into court, and make him responsible for all the consequences of the litigation; and we should frustrate that intention, and mar the harmony of our system of procedure, if in the face of such language as “express authority” we permitted any implications to sustain an action in the' name of other than the real party in interest.

Again, it is insisted that if the action should have been brought in the name of the district the words, “ F. M. Parker, Treasurer of,” may be dropped from the title as surplusage, and then the action will stand in the name of the district. We are cited to some cases in which a party bringing suit in his own name, but describing himself as “executor,” “ administrator,” etc., it has been held that the latter part being a mere desariptio personas, might if necessary be dropped as surplusage. This is familiar; but these cases are far from being in point. In them the change is simply in the capacity in which the plaintiff sues. In this the change is of the party plaintiff. The strongest case cited is that of Harding v. Trustees of New Haven Township, 3 Ohio, 227, where the action was commenced against “Fiseley, Baney, and Palmer, trustees of New Haven township,” and where, it being obvious that the corporation was the party intended to be sued, and the- court holding that the names of the individual trustees ought not to have been inserted, it was decided that the names might be stricken out, and the case stand in the name of the “Trustees of New Haven Township.” This ruling, which it must be conceded goes a great way toward sustaining the claim of the defendant in error, was placed by that court mainly on the ground that the proceedings were commenced before a justice of the peace, and great indulgence should be extended to such cases. We quote from the opinion: “If it be said that this is an unusual extension of the privilege of amendment we refer the objector to the consequences that would follow were we to require of justices the same attention to regularity and form which has been considered necessary in the proceedings of courts of record.” The case at bar was in the district court, and therefore outside the reasoning of the court in that case. More than that, the change we are asked to' make- is far more radical than was made by the Ohio court. It involves an actual substitution of one party plaintiff for another.

The judgment of the court below will be reversed, and the case remanded.

All the Justices concurring.