Opinion
December 12, 1896.
The only way in which a suit can be commenced against a town is by bringing it against its town treasurer. In case of his death, or ceasing to hold said office, his successor may come in, or be summoned in, to defend such suit, within but not after one year from the time such vacancy in the office occurs.
The only question raised by the pleadings in this case is whether the fact that the defendant, William C. Pendleton, town treasurer, ceased to hold said office for more than one year prior to the summoning in of his successor James M. Pendleton, town treasurer, as a party defendant, abated the suit. We think this question must be answered in the affirmative. Pub. Stat. R.I. cap. 204, § 14, is as follows: "No action, suit or proceeding commenced or pending against any officer, receiver or trustee, in his capacity as such, shall abate in consequence of his death, or of his ceasing to hold his office, place or trust, within one year thereafter, but at any time within one year thereafter his successor in the office, place or trust may come in and take upon himself, or may be summoned in to take upon himself, the prosecution or defence of such action, suit or proceeding." The action in this case was brought against the town treasurer of Westerly "in his capacity as such," and hence this statute applies thereto.
The only way in which a suit can be commenced against a town is by bringing it against its town treasurer. Valcourt v. City of Providence, 18 R.I. 160. And, although, as contended by plaintiff's counsel, the town is the real party defendant and the one that must respond in damages if the plaintiff prevails, yet the town treasurer is the nominal or statutory defendant, and it is only by continuing him as a party to the suit that the case has any standing in court.
We do not think the excuse set up by the plaintiff in his replication, viz: that he was ignorant of the fact that said William C. Pendleton had ceased to be town treasurer, until more than a year thereafter had elapsed, changes the legal aspect of the case. The statute does not provide that the officer succeeding the one who holds it when the suit is commenced may be summoned in within a year after the plaintiff is informed of the fact, but within a year from the time when the fact occurs.
The demurrer to the replication is sustained.