People ex rel. Downer v. Norton
Before: Baldwin
Synopsis
Relatok conveyed to Y. one-third of certain real estate, in consideration that Y. should attend to a suit pending in the name of relator, for the recovery of the property. Y. employed an attorney to conduct the suit, the attorney of plaintiff being discharged. Relator moved the Court below to substitute another attorney in place of the one employed by Y. Court refused to grant the motion—the only reason urged for the substitution being, that Y. had neglected to prosecute the suit; and it not being shown that the agreement between him and relator had been canceled by the parties. Relator applies to this Court for mandamus: Held, that the writ lies ; that the agreement between relator and Y. does not exclude the former from the right to prosecute the suit, and employ such attorney as he chooses; that the exercise of this right will not affect any right Y. may have in the property or suit; that he may intervene, if a proper case be made, or prosecute his rights independently, or wait until a recovery, and then claim his rights under the contract with relator.
Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.
[440]This is an application for a mandamus to compel the Judge below to allow the substitution of an attorney in a case pending in the Twelfth District, in which case relator is plaintiff.
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.
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