Ex parte Randall

• Decision Date: 18 December 1906
• Citation: 42 So. 870,149 Ala. 640
• Parties: EX PARTE RANDALL.
• Court: Alabama Supreme Court

42 So. 870

149 Ala. 640

EX PARTE RANDALL.

Supreme Court of Alabama

December 18, 1906

Mandamus on the relation of W. H. Randall, against the Yellow Pine Lumber Company, to compel the dismissal of a suit. Writ denied.

R. W Stoutz, for petitioner.

Samuel B. Browne, pro se.

SIMPSON J.

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 lawyers of Mobile, in the name of W. H. Randall, against the Yellow Pine Lumber Company, in the circuit court of Washington county; the complaint containing 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 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 appeared 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 for 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 he may please with the defendant and to order the dismissal of his case, if he so desires. Weeks on Attorneys, §§ 212, 250; White v. Nance, 16 Ala. 345, 347, 348; Cameron v. Boeger, 200 Ill. 84, 65 N.E. 690, 93 Am. St. Rep. 165, 169, and note at page 171; Williams v. Miles (Neb.) 89 N.W. 455; 3 Am. & Eng. Ency. Law (2d Ed.) pp. 328, 349, 465; 4 Cyc. 927.

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 was 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 from counsel for defendant, requesting his personal attendance on the trial of said cause as a witness for defendant; and that said D. J. McDonald instructed said Randall, who was then in his employ, to remain at home on the day the sheriff would be looking for him to serve the subp na on him, and that, if McDonald needed him, he would wire him. It was admitted that the attorneys who 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 insisted by the petitioner, as one reason why the mandamus should be awarded, that under section 28 of the Code of 1896 this suit could not be maintained in the name of the petitioner, because he is not "the party really interested." The rule which has been uniformly followed on this subject is that, if the party suing is "the party to whom payment can legally be made and who can legally discharge the debtor, the action may be brought in his name, although the money, when collected, is not for his use, but for the use of some other person or persons, to whose use he is required to apply it, or to whom he is bound to pay it." Yerby v. Sexton, 48 Ala. 311; Hirschfelder v. Mitchell, 54 Ala. 419; Rice v. Rice, 106 Ala. 636, 637, 638, 17 So. 628.

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,...