County of St. Louis v. George Clay, 4 Mo. 559

Tompkins, Judge: The county of St. Louis sued Clay in an action of debt, before a justice of the peace, foiq breach of the statute ■entitled

an act regulating es-trays. , Mullanphy was attor-sney.1 Judgment before the justice wás given for the defendant. In the circuit court, the defendant again had judgment rendered in his Favor. ■ The plaintiff in the action moved for and obtained .a new trial. The defendant then moved to dismiss the cause', because the action in behalf of.the county was brought by Mullanphy as attorney for the county, and not by the circuit attorney. The cause for this reason, •was dismissed at the costs of Bryan Mullanphy, security •in the appeal bond.

To reverse the judgment of the circuit court, this appeal is taken, and it is contended 1st. Actions may be brought for the county by other ¡persons than the circuit attorney. 2nd. That the judgment of the circuit court on dismissing the cause, should have been against the county and Bryan Mullanphy, and not against Bryan Mullan-phy alone. 1st. The second

section of the act relating to the attorney general and circuit attorneys, passed 9th Dec., 1824, (the law in force when this action was commenced) provides that it shall be the duty of the circuit attorney to commence all actions, suits, process and prosecutions, civil and criminal, in which the State or any county may concerned, within his circuit. And it seems to me that the policy of the law requires that no other person should prosecute; otherwise the State and county might *ncur Sreat expense by the prosecution of frivolous suits, at the instance of unauthorized agents. Quere?

Where such a suit is in-thoriíed a7 entaU" and the judgment of the justice being against the is°taken^0 the^circuit court, and aUamatthefa^ei lantflsit error'to enterup judgment rit^intfieVco1" nizance alone?6" 2nd. The seventeenth

section of the 8th

article of the act to establish justices courts, and regulate proceedings therein, provides, that in all appeals from a justices court, if the judgment of the justice be affirmed, or if on a trial anew in the circuit court, the judgment be against the appellant, such judgment shall be rendered against him and his securities in the for the appeal, But for this statute the judgment of the circuit court must iiave been given against the county of St. Louis alone; and the defendant in this action would have had no remedy against the security in the recognizance for the aPPea^) but on this recognizance.

It seems to me therefore, that the circuit court committed error in giving judgment against the security in the recognizance alone; and that for this reason, its judgment ought to be reversed.