Young v. Moor

Hill, J. (After stating the foregoing facts). This was a common-law action brought by the plaintiff as a citizen and taxpayer “for the use of the City of Cartersville” against the mayor [403] and commissioners of that municipality, to recover certain sums of money which were raised by taxation, and were alleged to have been misappropriated and paid out by the defendants to an agent of a certain fidelity and guaranty company as premiums on their, official bonds. A demurrer to the petition was overruled, and the defendants excepted. The case proceeded to trial; and at the conclusion of the evidence the court directed a verdict for the plaintiff, to which exception was taken. If our view of the law of the case is correct, we need look no further than to the petition and demurrer. This is not an equitable action brought by the'plaintiff on behalf of himself and other tax-* payers as a class, to restrain the corporation from exceeding its lawful powers over corporate funds and thus injuriously affecting the taxable inhabitants by increasing the burden of taxation and the like; but is a common-law action in the plaintiff’s own name, for the use of the municipality, to recover money alleged to have been illegally appropriated by the officers of the corporation of which he was a citizen and taxpayer. The legal right to recover the money alleged to have been misappropriated was in the municipality, and was never in the plaintiff; and before he could recover it in a common-law suit, it must appear that he had the legal right to sue. Nor do we think that in a case like the present the plaintiff could sue “for the use of” the municipality, in order to recover the money. If the plaintiff had no legal right in himself to sue, to do so for the use of some one else would not confer that right. See State of Georgia v. Bank of Quitman, 117 Ga. 849 (45 S. E. 236). There being no authority of law to authorize a suit like the instant one, we think the court erred in not sustaining the demurrer and dismissing the petition. Judgment reversed. All the Justices concur.