Emerson v. McWhirter

THE COURT.

In an action brought by the plaintiffs to have their title to certain mining property quieted as against defendant McWhirter, judgment was rendered in favor of Mc-Whirter, declaring him to be the owner and entitled to the possession of the ground, and forever enjoining the plaintiff from asserting any title thereto. This judgment was entered May 4, 1899, and on May 9th, McWhirter’s title to the ground became vested in the Tosemite Gold Mining Company (a corporation) by a conveyance from him. Proceedings in the superior court were thereafter continued between the original parties. The plaintiffs moved for a new trial, and, their motion having been denied September 8th, an appeal was taken by them on the same day from this order and from the judgment, and the record has been filed in this court. A motion is now made by the corporation to be substituted “as party defendant in the place and stead of McWhirter.”

The provision of section 385 of the Code of Civil Procedure, that in case of any transfer of interest in a cause of action, the action may be continued in the name of the original party, “or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding,” has reference to a transfer of interest before the entry of judgment in the action. After the rights of the parties to the action have been finally determined and the judgment thereon entered, others succeeding to their interests in the property affected by the action take the same' subject to the judgment and with all its protection.

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The provision in the section is permissive, and the discretion of the court in making the order is to he exercised in view of all the circumstances attending the application. In the present case, as the corporation and McWhirter are represented by the' same attorney—the motion for the substitution and the admission of its service being both signed by him—there would seem to be no occasion for making the order, as the rights of each, both for himself and as against the other, can be adequately protected.

The motion is denied.