Paxton v. Archer , 2 Miss. Dec. 611 ( 1881 )

Opinion.

Campbell, J.:

Without deciding any other question, we hold that the suit should not have been dismissed finally, but the order dismissing it should have been set aside, and the amended declaration tendered should have been allowed to be filed. It sufficiently shows that the suit is brought in the names of taxpayers, and the law makes them liable for costs. The object of the statute authorizing suit in the name of a taxpayer is to meet the case of unwillingness on the part of the board of supervisors to sue, and to permit a suit for the benefit of county by any taxpayer who will stand forth in behalf of the county and thereby incur liability for costs. The particular form by which the name of the taxpayer who causes suit to be instituted is made to appear as an actor in the suit, is not material. It would be more strict conformity to the statute and rules of pleading to declare in the name of the taxpayer, as suing for the use of the board of supervisors, and to set forth by proper averments the facts relied on to entitle the plaintiff to a recovery. The suit, being on a bond, should set it forth and show it was broken. All that is necessary is for the declaration to “contain sufficient matter of substance for the court to- proceed upon the merits of the cause,” and it is “no objection to maintaining any action that the form thereof should have been different.” Code 1880, § 1536.

The amended declaration is sufficient with respect to parties plaintiff and understanding from the record and the argument of counsel, that it was rejected by the court below on account of its assumed insufficiency in this respect, we reverse the judgment dismissing the action, and set it aside, and grant leave to file the amended declaration, and remand the cause for further proceedings in the Circuit Court. The declaration will be subject to demurrer or plea, and we decide nothing hereby except as to the right of the taxpayers named in the declaration to be heard' on the subject of their complaint in the manner in which they have presented themselves in the amended declaration.