Lacy v. Webb, 130 N.C. 545 (1902)

May 20, 1902 · Supreme Court of North Carolina
130 N.C. 545


(Filed May 20, 1902.)

PARTIES — State Treasurer — The Code, Sec. 3359.

Where a state treasurer goes out of office pending a suit by him in his official capacity, the incoming treasurer is entitled to he' made a party in his stead. •

ActioN by B. E. Lacy against T. M. Webb and others, beard by Judge M. II. Justice, at October Term, 1901, of the Superior Court of Burke County. From a judgment for the defendant, the plaintiff appealed.

F. H. Busbee, for the plaintiff.

J. T. Perkins and Justice & Pless, for the defendants.

Clark, J.

This was an action brought by W. H. Worth in his official capacity on a bond given by the Piedmont Bank to E. S. Walton, deputy treasurer, to secure certain moneys of the State deposited in said bank, to be drawn out in favor of the Deaf and Dumb School and Western Hospital. The matter was referred to Armistead Burwell, referee, who ascertained and reported the balance due. B. E. Lacy, who had succeeded to the office of Public Treasurer, came into Court at August Term, 1901, of Burke Superior Court, and made himself party plaintiff, and adopted the pleadings theretofore filed in the cause. The defendants excepted to this order, and at the next term of said Court, defendants moved to dismiss, this action, which motion was allowed and the Public Treasurer appealed.

The money belonged to the; State of North Carolina. The bond given to E. S. Walton, deputy treasurer, was given to secure its safe custody and payment to- the State or under its direction. The State Treasurer is authorized (The Code, *546Sec. 3359) “to-demand, sue for, collect and receive all money and property of tbe State, not held by some person under authority of law.” Tbe bond to E. S. Walton, deputy treasurer, to secure tbe safe keeping' of tbe State’s funds enured to tbe benefit of tbe State, and being tbe “real party in interest” tbe State could maintain an action tbereon in tbe name of its Public Treasurer for tbe time being. Neither Walton nor Worth; nor Lacy, has any personal interest in tbe matter, and tbe latter can maintain tbe action only as representative of tbe State. Tbe authorities prior to Tbe Code, Sec. 177, have no bearing, for that section was enacted to cure tbe technicalities of tbe former law and rulings, and give tbe action in every case to “tbe real party in interest,” which is here tbe State. Somewhat analagous cases are Speight v. Staton, 104 N. C., 44, and Peebles v. Boone, 115 N. C., 57, 44 Am. St. Rep., 429. If tbe State bad been nothing more than tbe beneficiary of tbe bond, it could maintain this action. Gorrell v. Water Co., 124 N. C., 328, 46 L. R. A., 513, 70 Am. St. Rep., 598. But this case is stronger, for tbe bond to Walton, deputy treasurer, was a bond to secure tbe State, as tbe party in interest, .and as such it can maintain this action in tbe name of its Public Treasurer for tbe time being. It is not a case either of subrogation or substitution. There is but one party, tbe State, who appears in tbe name of its successive agents, as provided by statute.