Armstrong v. Durland , 11 Kan. 15 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

The action in the district court was on the bond of a treasurer of a school district, and was brought to recover a balance not paid over to the successor in office. The alction was brought in the name of the present treasurer as plaintiff. To the petition a demurrer was filed, which was overruled by the court. This was error. Coffman v. Parker, ante, p. 9.

Leave was given to amend the petition, but no amendment appears to have been made. The journal entries subsequent to this were entitled “School District No. 45, or A. C. Durland v. Simon Armstrong.” This was manifestly improper. The plaintiff cannot be described in the alternative, as one, or another. If the plaintiff elected to proceed in the name of the district, it must so appear; if of the treasurer, that must also appear. He cannot cover the contingencies of future rulings by using both names joined by a disjunctive. The judgment was entered in favor of the school district. This, whether we consider the title of the cause as shown by the petition, or the journal entries, was wrong.

On the 24th of April an order was entered allowing de« fendant ten days to file answer. On the 3d of May judgment was entered for want of answer. This was error. The time for answering had not elapsed, and the defendant was not in default.

It seems to us also that the showing made subsequent to the judgment was- sufficient to have vacated the judgment. We have noticed these errors, not because we proj>ose to reverse the case upon them, but as a guide in the future disposition of the case in the district court.

The petition in error will have to be dismissed for the reason that the party in whose favor the judgment was rendered is not made defendant in error, nor brought into this court. The party in whose favor the judgment was rendered was the school district. The defendant in error is A. C. Durland, Treasurer of the district. There is no judgment in favor of Durland to be disturbed. Ferguson v. Smith, 10 Kas., 394.

All the Justices concurring.