Nye v. Kelly

Citations

• 19 Wash. 73
• 52 P. 528
• 1898 Wash. LEXIS 320

Syllabus

<p>PUBLIC OFFICERS — ACTION ON BOND — LEAVE OF COURT — PARTIES — INSTRUCTIONS.</p> <p>In an action upon an official bond by the agents of the state solely for the benefit of the state, leave of court to prosecute the action is not necessary, under Code Proe., § 696, requiring leave of court to be first obtained before the commencement of an action by a plaintiff other than the state, since an action by state agents solely for its benefit is virtually an action by the state.</p> <p>The objection that plaintiff has commenced his action without leave of court first obtained, in cases where such leave is necessary, is waived, if not raised until after the joinder of issue.</p> <p>Under Laws 1891, p. 355, § 7, providing that all suits necessary to protect the rights of the state in matters or property connected with the penitentiary and its management shall be prosecuted in the name of the board of state penitentiary directors,” such directors, acting in their official capacity, may bring an action in their own names for the benefit of the state upon the official bond of the warden to recover on account of his defalcation of public funds.</p> <p>Where evidence admitted in the trial of a cause has been subsequently stricken by the court on the ground that its relevancy nad not been shown, it is error for the court to subsequently base an instruction upon the evidence as if it were still in the case.</p>