State Ex Rel. Commissioners of Warrenton v. Arrington

Smith, C. J. If the complaint be considered apart from the process and its heading, it will be seen that a cause of action is set out in favor of the commissioners of the town of Warrenton, or of the town itself, which they represent, and none in favor of the State. It is true, that in the process they appear as relators prosecuting in the name of the State, as upon an obligation incurred to it, as they do in the caption to their complaint, nevertheless, they are present in the complaint — which is the foundation of the action alone to be answered — as plaintiffs in their official capacity, and representing the obligee, the town itself, as sole prosecutors of the action, and in which the State is shown to have no legal interest. In State ex. rel. Cox v. Peebles, 67 N. C., 97, the caption following the summons was, “ State on relation of W. R. Cox, Solicitor, v. Nicholas Peebles, Edmund Jacobs and others,” and the action was upon a guardian bond, to recover the estate of infants, and it was objected that the relator should be the infants for whom the Solicitor was prosecuting the suit, and who could not properly himself, be a relator. The Court, after over-ruling the objection as coming too late after judgment, and remarking, that if taken in apt time “ his Honor would have allowed an amendment had he deemed it necessary,” concluded the opinion in these words: “Blit the Court is of the opinion that the action is properly brought, as the complaint shows, that notwithstanding the caption, it is really in the name of the wards, against their *113 late guardian and his sureties on the guardian bond.” This ruling shows that to find the parties plaintiff the complaint may be looked into, and those ate relators who appear therein to be entitled to maintain the action upon the cause of action set out. Relators are those for whose benefit suit is brought on an official bond, and are substantially the plaintiffs demanding relief, and the miscalling them cannot impair their right to recover, when this is patent upon the complaint. The State is not a proper party to the suit, and it has been decided, contrary to the former practice, that under the Code system the joining improper parties with the plaintiff is a harmless error, as judgment may he rendered in favor of such as are entitled, and therefore the proceeding is not vitiated. Green v. Green, 69 N. C.; 394; Burns v. Ashworth, 72 N. C., 496. Moreover, the demurrer is insufficient in form, and does not properly raise the question argued before us. It assigns as the ground thereof, that the relators, suing on behalf of the town, " are not proper parties to this suit,” while it is plain that they (or the town) are the only proper parties to maintain the action, not as relators, but in their own right, and the State is an improper party, and this for the reason given in the demurrer that the bond “ was not executed to and payable to the State.” If the State were not the ob-ligee, and the complaint averred that it was, the variance between the allegation and proof would be fatal at the trial. We do not understand it to be contended that the bond is a nullity, and no recovery could be effected in an action brought to enforce its provisions by the obligee. We do not propose to pursue the discussion of the point, because it is not necessary in disposing of the ruling brought up for review, further than to say, that no reason occurs to us for refusing to enforce such a bond in a suit at the instance of the present obligee, the town, which, acting in a *114 public capacity, has taken a security for the faithful discharge of the trust assumed by the principal obligor, on an appointment legally conferred. It would be a strange result if the defendants, accepting what has been done, and by becoming sureties enabling their principal to collect taxes under the conferred office, could disown what has been done and exonerate themselves from all liability upon their obligation. We must overrule the demurrer for the reasons stated, and suggest to the Court below, wheu the cause is again taken up for action under this opinion, if deemed necessary, such amendment merely be made as will make the record self-consistent and harmonious in its several parts. The judgment must be reversed, and the cause proceed in the Superior Court of Warren. Error.