42 So. 870 | Ala. | 1906
This was an application for a writ of mandamus to the judge of the Thirteenth judicial circuit to compel the dismissal of a suit. The facts are that a suit was brought in said court by lawjmrs of Moble, in the name of W. H. Randall, against the Yellow Pine Lumber Company, in the circuit court of Washington county; the complaint contained the general counts and being based on an account. The suit was commenced October 9, 1903. ■ After said case had been to the Supreme Court and returned to the docket, it was called for trial on March 6, 1906, at which time counsel for defendant presented to the court a power of attorney from the plaintiff authorizing the dismissal of the cause, and stating that he had never authorized any one to bring the suit and did not wish it prosecuted any further. The court refused to hear the said attorney, because he was the attorney for the defendant and could not be allowed to represent both sides of the case. The plaintiff himself then appéared and made the same statement, to the effect that he had not employed any one to bring the suit, that he did not desire to prosecute it further, and moved to dismiss the case, which motion was refused.
We will say in the outset that, while it is true that an attorney cannot represent both sides in a litigated case, yet, when the plaintiff chooses to sign a paper authorizing the attorney for the defendant to dismiss the case, the presentation of said paper to the court by the attorney far the defendant is not such representation of both parties as is forbidden, but he is still acting in the interest of his client, and merely carrying out the dismissal which the plaintiff has authorized in the interest of the defendant. It is also true that the client, whether he has employed the attorney or not, has a right to make any settlement or compromise ho. may please with the defendant, and to order the dismissal
But the answer of the respondent and the affidavits show that the facts made known to the court were that said plaintiff had been the bookkeeper of the “D. J. McDonald Stone Company,” and also the “McDonald Lumber Company”; that, while he was acting in that capacity, the account which is here sued on was claimed to be due to one Hess by the Yellow Pine Lumber Company (the defendant in the action), to which said lumber company claimed a set-off ;that said Hess ivas indebted to both companies, and D. J. McDonald was a stockholder in all three corporations. So the account in question was assigned to said petitioner, W. H. Randall, who was to collect the amount due on the same and hold the proceeds in trust for. distribution between the D. J. McDonald Stone Company and the McDonald Lumber Company, according to their interests. Said Randall, in his affidavit states that he is not in the slightest interested in the litigation; that, at the time said account was assigned to him, he was not informed of the fact, “though he did. learn afterwards that such transfer had been made,” and that at a previous term of the court he received a. letter froxn counsel for defendant requesting his personal attendance on the trial of said cause at a witness for defendant; and that said D. J. McDonald instructed said Randall, Avho was then in his employ,- to remain at home on the day the sheriff would be looking for him to serve the subpoena on him, and that, if McDonald needed him, he would wire him. It Avas admitted that the attorneys Avho brought the suit-were employed by said D. J. McDonald Stone Company, and, when the plaintiff sought to have the case dismissed, said parties produced a bond to hold said Randall harmless from all costs and liabilities on account of said suit, and that said Randall admitted that the sureties on said bond were abundantly sufficient as sureties.
It is next' insisted that the plaintiff had never accepted the trust. As the evidence shows that he was informed of the transfer. after it'was made, and knew for some time of the institution of the suit in his' name, and made no disavowal of the trust, his acceptance will be presumed. — 1 Beach on Trusts & Trustees, p. 50, § 39; also pages 877, 878, § 375.
The final contention is that, as Randall Was the only party plaintiff to the case', he, and he alone, had "the right to control it or dismiss it, and no one else had a right to intervene and stay the execution of his demand. This question was presented, in' a. negative way, to this court in an early day. A suit was brought in the name of Brazier, but during the progress of the case the plaintiff himself filed an affidavit, stating that it was commenced and carried on without his knowledge; and asked that the suit be dismissed. The lower court ordered the party claiming the beneficial interest to give security for costs, and, that not being done by the next term of the court, the case was dismissed, although the person interested then offered to give the' security. This court refused to .reverse, on the ground that the correctness of the order of dismissal could not be inquired into on writ of error; but the court said it was the duty of. the court to protect the rights and interests of those who' are beneficially interested “against the improper interference of the plaintiff on the record, but. the only
It is true that, in most of the foregoing cases, there was some contract relation existing between the parties, such as vendor and vendee, or assignor'and assignee; but there is another class of cases in which this principle has been recognized, and which are analogous in all points to the one now under consideration, to-wit, that “where there is a trustee and cestui que trust, the cestui que trust may bring an action at law in the name of his trustee, whenever necessary * * * for the protection of the trust property,”, or for the recovery of money to Avhich the cestui que trust is entitled, “and the trustee can neither release the right of action nor discontinue the suit, but he may ask indemnity against cost.”- — 2 Beach on Trusts & Trustees, p. 1055, § 459; Hart v. W. R. R., 13 Metc. 99, 108, 46 Am. Dec. 719; Fire Insurance Co. v. Hutchinson, 21. N. J. Eq. 107, 117; Commissioners v. Johnson, 36 N. J. Eq. 211, 212. The principle which we extract from all these cases, and Avhich seems to be consonant with reason and right, is that, where one party holds the legal title and is the proper party to sue, while another has the beneficial interest, in a chose in action or property, the latter has a right to use the name of the former in a suit to recover the money or property, upon indemnifying said party against costs, and the former has no right to dismiss a
The petitioner had and has a right to be fully heard on the question of fact as to whether the beneficial interest is in the parties who claim it; but, if that beneficial interest be.'in them, as the affidavits seem to establish, he had no' right to insist on the dismissal of the case.
The Avrit is denied.