Jennings v. Pearce , 99 Ala. 303 ( 1892 )

HARALSON, J.

There are many assignments of error which lie beyond the dismissal of the garnishment suit against H. C. Chandler, as debtor to Henry Pearce, the defendant in attachment. These are based on rulings connected with the garnishment, proceeding, and it will be unnecessary to consider them, since, according to the view we take of the case, they disappear, with the errors assigned for the dismissal of that suit.

This appeal, let it be noticed, is not prosecuted by either of the parties to the original attachment suit, nor by either party to the garnishment proceeding, but by Messrs. Richardson & Reese and S. G. Pruett, who are strangers to the record, but. who claim to be the owners of plaintiff’s cause of action, and to have the right to prosecute it.

It may be stated generally, as a-well settled principle, that a plaintiff has the absolute right, at common law, to discontinue his suit, before or after issue joined, and without the leave of the court. — lAm. &Eng. Encyc. of Law, 184; Hawes on Parties to Actions, § 2. In White v. Nance, 16 Ala. 345, it was held, that a plaintiff in an action of ejectment, or trespass to try titles, may dismiss the suit, whenever he thinks proper. In the 'opinion rendered, Judge Largan said: “It is true, a suit at law may be carried on by one who is beneficially entitled to the money, in the name of him in whom is vested the legal title, and a court of daw will protect the rights of him beneficially interested, and will not permit the plaintiff to dismiss the suit, if the party entitled to the proceeds of the recovery will indemnify him against the costs, to which he may be subjected.” We adhere to what was there said, as a proper practice in such cases.

We are not informed by the record that Messrs. B>ichardson & Beese and Pruett offered to indemnify the plaintiff against the costs to which he might be subjected by the further prosecution of the case, and we are to presume they did not. Without such an offer, they had no right to resist the dismissal of the cause by plaintiff, on the grounds set up by them.

■ There remains another ground, on which the appeal in this case can not be sustained. In Brazier v. Tarver, 4 Ala. 569, it is said: “We think it very clear, that when a suit is once. dismissed, at the instance of the plaintiff upon the record, the correctness of the proceeding cannot be inquired into upon a writ of error; for this course would involve the defendant in a controversy, in which he has taken no part, and in which he has no interest. We do not doubt, that it is the duty of a court to protect the rights and interests of those who are beneficially interested in suits or dioses in action. Such suitors can and* ought to be protected, against the improper interference of the plaintiff on the record, but the only mode to correct erroneous action in this particular is mandamus.”

The action of'the court below, in dismissing said garnishment suit, so far as appears, was without error; and the cause being improperly here on appeal, is dismissed, at the costs of the appellants, as to the appeal, in this, and in the court below.

Dismissed.