Sanderson v. Cerro Gordo County

Granger, J. — We deem it unnecessary to refer to more than one ground of the demurrer, as it seems decisive of the case. There is no pretense, but in fact it is expressly urged, that the suit is by the plaintiffs in their official capacity, for the “use and benefit of the township, or for the local board of health.” The action 91 is at law, and we must look to the provisions of the statute for a recognition of their right to bring the suit. Appellants do not attempt to point out a section of the statute or a decision as authority for this proceeding, except the case of Long v. Emsley, 57 Iowa, 13, wherein it was held that a township clerk could maintain a suit to recover money to which he was entitled by virtue of his office, such as road funds ; but the facts in this case are widely different. We know of no law giving the plaintiffs the right to receive and hold the funds in question, conceding the liability of the county for its payment. Code, section 2543, provides that “every action must be prosecuted in the name of the real party in interest, except as provided in the next section.” It is plain that the plaintiffs are prosecuting the suit in a representative capacity, and we inquire if they come within the exceptions of section 2544. It provides: “An executor or administrator, a guardian, a trustee of an express trust, a party with whom or in whose name a contract is made for the benefit of another, or a party expressly authorized by statute, may sue in his own name, without joining with him the party for whose benefit the suit is prosecuted.” With all that appellants claim, the township or the board of health must be held as the real party in interest. Appellants say that the “local board * * * have a trust capacity” which entitles them to act. If it is true that'they have as to the funds in question, — which we must not be' understood as holding, — still it is not an express trust, but one clearly arising by implication, and the plaintiffs are not within the provision of the statute. We think it unnecessary to elaborate, and the judgment of the district court is ■ Aembmed.