Opinion
No. 13,400.
Decided May 6, 1935.
Action against county to recover taxes paid under protest. Judgment of dismissal.
Affirmed.
1. COUNTIES — Actions Against — Misnomer. An action brought against "The County of Phillips, State of Colorado," is not maintainable. Suits against counties must name the defendant as, "The Board of County Commissioners of the County of............" There is no authority to sue them by any other name.
Error to the District Court of Phillips County, Hon. H.E. Munson, Judge.
Mr. EDWARD V. DUNKLEE, Mr. W. MABRY KING, for plaintiff in error.
Mr. BEN L. GARMON, for defendant in error.
An action to recover taxes paid under protest. Judgment of dismissal entered and the taxpayer assigns error.
The proceeding was against "The County of Phillips, State of Colorado." An action so brought is not maintainable. "In all suits or proceedings, by or against a county, the name in which the county shall sue or be sued shall be, the board of county commissioners of the county of............" C.L. 1921, § 8662. Even had the taxpayer been successful below its judgment would have been unavailing. Board of County Commissioners v. Churning, 4 Colo. App. 321, 35 Pac. 918. "We have but one statutory provision concerning the manner in which a suit shall be brought against a county. It must be brought against the board of county commissioners of the county sued. That is the corporate name of the county for the purposes of the suit, and there is no authority to sue it by any other name. In this case the statutory requirement having been disregarded, the judgment is a nullity." Id. See, also, Board of Com'rs Sweetwater County v. Young, 3 Wyo. 684, 29 Pac. 1002; County of Rock Island v. Steele, 31 Ill. 543; 15 C. J. 665, § 379; 7 R.C.L. 966, § 40.
Let the order be that the judgment is affirmed.
MR. CHIEF JUSTICE BUTLER and MR. JUSTICE BOUCK dissent.