
    (March 11, 1889.)
    UNITED STATES ex rel. McDONALD, District Attorney, v. SHOUP et al.
    [21 Pac. 656.]
    Paetibs to Action — County must be Sued in Corporate Name.— An action by a county must be in its corporate name. Since tbe 1st of June, 1887, tbe date when the Revised Statutes of Idaho went into effect, an action for tbe benefit of a county, and where tbe demand sued upon is a property of the county, must be in tbe corporate name of the county.
    Reformation of Instrument Sued on. — A bond payable to tbe people of the United States will not sustain a judgment in favor of tbe people of tbe United States of tbe territory of Idaho. Before such judgment can be allowed, the instrument must be reformed.
    General Denial — Unverified Complaint. — A complaint by a public officer, in bis official capacity, need not be verified, but the answer to it must be verified, unless it also be by a public officer in his official capacity, but if tbe complaint be not in fact verified, a general and not specific verified answer may put in issue tbe main allegations of the complaint under section 4183 of the Revised Statutes.
    (Syllabus by tbe court.)
    APPEAL from District Court, Lemhi County.
    This is an appeal from the judgment of the district court in and for Lemhi county, rendered April 26, 1888, in favor of the plaintiffs, and against the defendants severally, in the sum of $500 each. The action was commenced July 14, 1887. The defendants on the twenty-eighth day of December, 1887, appeared by tbeir attorney, C. A. Wood, Esq., and filed a demurrer to the amended complaint, which amended complaint had been filed on the nineteenth day of that month. The complaint set up a bond executed by the defendants, November 26, 1886, in the penal sum of $2,500, which the defendants promised to pay in sums of $500 each, conditioned for the appearance of one Thomas McKinney, to answer to a criminal charge, in whatsoever court, etc., and to hold himself amenable to the orders, etc. The proceedings in which the bond is taken were regular, and authorized the talcing of such bond as plaintiffs say this was intended to be. The bond was in form as described by section 499 of the Criminal Code of Idaho territory (Revised Laws, 8th Sess.), except that it was, by its terms, payable to “the people of the United States,” instead of to “the people of the United States of the territory of Idaho.” The complaint, which was not verified, admits this deficiency, but alleges that the defect was caused by mistake of all parties to it; and that the prosecutor and all the defendants intended it to be in statutory form; and prays that (1) the bond be reformed by adding to it, after the words ‘United States,” the words “of the territory of Idaho,” as the obligees of said bond; (2) that the plaintiffs have judgment upon the bond. To this complaint the defendants demurred, and state, as grounds of demurrer: 1. That the plaintiffs have not the legal capacity to sue; 2. that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled by the court, and the defendants excepted; whereupon the defendants answered as follows: The defendants, in answer to the complaint of the plaintiffs herein, “deny each and every allegation therein contained,” which answer was duly verified. On the twenty-sixth day of April, 1888, the plaintiffs by their counsel, said district attorney, moved for judgment on the pleadings, on the ground that the answer was only general, and not a specific denial of the allegations of the complaint. The motion was sustained, and judgment was entered against the defendants in the sum of $500 each; to all of which the defendants excepted.
    Charles A. Wood, for Appellants.
    If a condition prescribed by statute is omitted, the bond is void, although the surety is benefited. (Alexander v. Bates, 33 Ga. 125; State v. McCown, 24 W. Ya. 625.) If tbe recognizance is not authorized by law, or if tlie court bad no authority to take it, it is void. {Keppler v. State, 14 Tex. App. 173; Phelps v. Parks, 4 Yt. 488; Nicholson v. State, 2 Ga. 363.) If the answer was sham or frivolous, or improper for any other reason, it should have been stricken out; but so long as the answer remained on the records, denying any of the material allegations of the complaint, the court had no authority to order judgment on the pleadings. {Reich v. Mining Co., 3 Utah, 254, 2 Pac. 703: Frost v. Alore, 40 Cal. 347; Hicks v. Lovell, 64 CaL 14, 49 Am. Rep. 679, 27 Pac. 942.)
    R. Z. .Johnson, Attorney General, and Henry Z. Johnson, (James H. Hawley, of Counsel), for Respondents.
    As the complaint shows that the defendants secured the discharge of their principal by the execution of the bond in question, neither said principal nor the defendants were prejudiced by the clerical error in the bond. {People v. Myers, 1 Idaho, 357; Huffman v. Koppelkom, 8 Neb. 344, 1 N. W. 243; Kopplekom v. Huffman, 12 Neb. 95,10 N. W. 577; State v. Soudriette, 105 Ind. 306, 4 N. E. 860; Gorman v. State, 38 Tex. 112, 19 Am. Rep. 29; Murfree on Official Bonds, sec. 62.) The sureties cannot set up as a defense the fact that the amounts in which they justified were insufficient under the statute. The justification is no part of their contract. {People v. Carpenter, 7 Cal. 402; People v. Shirley, 18 Cal. 121; People v. Penniman, 37 Cal. 271; Murdock v. Brooks, 38 Cal. 603; Brandt on Guaranty and Suretyship, secs. 439, 440.) Although the complaint was not verified, the territory being plaintiff, the statute required the defendants to verify their answer. (Rev. Stats., see. 4199.) A general denial in a verified answer is sham and frivolous, and may be stricken out or disregarded. {People v. Hagar, 52 Cal, 171, 175, 182; Lumber Co. v. Richardson, 31 Minn. 267, 17 N. W. 388.) Whenever the answer fails to deny any of the material allegations of the complaint in such form as to put the same in issue, the plaintiff is entitled to judgment upon the pleadings. {Doll v. Good, 38 Cal. 287; Pitzgibbon v. Calvert, 39 Cal. 261; Felch v. Beaudry, 40 Cal. 443.)
   BERRY, J.

(After Stating tbe Facts.)- — The first question is whether the action is brought in the name of the proper plaintiff. It is conceded that the county of Lemhi, Idaho territory, is the party in interest, and for whose benefit the action is brought. Whatever was the practice as it stood prior to the first day of June, 1887, the statutes on which that practice rested were either repealed, or superseded, by the Revised Statutes, which went into effect June 1, 1887. By section 4090 all actions must be brought in the name of the party in interest. By section 1732 all acts respecting the property and rights of the counties shall be in the names of the respective counties. And by section 1733 counties may sue and be sued. It seems, therefore, that the county is not only authorized to sue in its own name, but is required to do so; and that this action should have been brought in the name of Lemhi county. But it is objected further that the bond does not run to the county of Lemhi, or even to the people of the territory of Idaho, but .to the people of the “United States/5 and that such a bond was unauthorized by the laws; that as to the meaning of the parties to this bond the court cannot from the words alone take judicial knowledge that the bond was intended to run otherwise than it was in fact drawn. The bond, if a judgment was to be rendered upon it in favor of the people of the territory of Idaho, or for the benefit of Lemhi county, should have been reformed. It was not reformed; and, as it stood when judgment was rendered, would not sustain a judgment in favor of the people of the United States in the territory of Idaho. A bond in this form was unknown to the laws; and only on reformation could it have any validity whatever. But it is claimed that it is alleged in the complaint that it was the intention of all parties to it to make it payable as provided by section 498 of the Laws of the Eighth Session, and that such fact is admitted. Even if such were the case (which the defendants do not admit), the bond should have been reformed as prayed in the complaint, before a judgment should have been rendered. Iu some way it should appear in the action of the court that the promise was for the benefit of the party demanding judgment upon such promise. There should have been a formal reformation of the bond, even if, as the respondent contends, the answer was not sufficiently specific. But was not the answer sufficient to put in issue each material fact of the complaint? Whatever may be thought of the intention of the parties, we must still look to what they did, and for this, first, to the pleadings. The allegations of the complaint are that by mutual mistake there was a defect in stating in the bond the name of the obligee; and which allegation, if adjudged to be true, might cure that alleged defect in the judgment. The answer, as to every material allegation in the complaint (Idaho Rev. Stats., secs. 4183, 4184), is good, as a general denial. But it is not a specific denial of each allegation controverted; hence, if the complaint is verified, the answer is open to the objection of insufficiency. The learned judge in the court below seems to have taken the view that the complaint was verified, and that the answer should be wholly disregarded. While it is not specifically stated for what cause he ignores the answer, we may suppose it was for want of compliance with the statute (section 4183), in not being specific in denial of each material allegation of the complaint controverted. If such holding is correct, it must be for the reason that in this case a general answer is denied to the defendants. Section 4199 of the Revised Statutes provides that when an action is brought in the name of an officer of the territory, and for the public, the complaint need not be verified; but the defendant, unless he also be an officer, or answering in his official capacity, must verify his answer. The statute goes np further on that point than merely to excuse such officer from verifying Ids pleading, and of requiring unofficial parties to verify. The statute does not “verify the complaint,” as the respondent claims. The officer is excused from verification for reasons growing out of the fact that his relations to the subject matter are official, and not personal. If he desires, he may verify; and then his pleading will be a verified pleading, and will entitle him to whatever advantage may result from that fact. But if he do not verify, his pleading, for all purposes, except as to the single matter of verification alone, differs in nothing from an ordinary unverified pleading. In this case the defendants were entitled to interpose either a general or specific denial of tbe material allegations of tbe complaint, controverted by the defendant. (Rev. Stats.., sec. 4183, snbd. 1.) The answer was good, and the action of the court below was therefore, error. From the view taken of the points here noted, it is apparent that the judgment cannot be sustained. Judgment reversed.  