16 Cal. 436 | Cal. | 1860
Field, C. J. concurring.
1. The ground of the refusal of the Court to grant the order of substitution seems to have been, that it appeared that the plaintiff had conveyed to one Tountz, one-third of the premises (real estate) in suit, in consideration of Tountz attending to the case as his agent; that Tountz had employed a gentleman of the law to bring the suit, and that the only reason urged in support of the motion was, that Tountz had violated his agreement, by neglecting to prosecute the suit; that it had not been shown that this agreement had been canceled by the parties or declared void. There seems to have been no express agreement that Tountz should take the exclusive management of the case, or that the plaintiff should have no right to interfere. This suit is brought in the name of the plaintiff, and it is conceded he is interested in the result of it, and in the property to the extent of two-thirds. We think this agreement does not exclude the plaintiff from the right of prosecuting the suit thus brought. He is the plaintiff in the suit, with all the rights attaching to that character, and among them, the right to employ such attorney as he may select to manage and conduct it for him. If Tountz has any rights in the property or the suit, they are not affected by the exercise of this right of Downer; for his remedy is clear and ample. He may intervene if a proper case is made, or prosecute his rights independently of the plaintiff, or he may wait until recovery, if this be the result, and claim his rights under the contract. But the original right of Downer was as we have stated it, and we see no such cession of that right as denies him the privilege he asserts.
2. We think mandamus proper under the circumstances, there being no other adequate and unembarrassed remedy.
The writ is accordingly allowed.