Walker v. Felt

Department No. 2, Sharpstein, J.: In 1871, the plaintiff and his attorney united in a conveyance of all the property involved in this action, as appears from deeds recorded at that time. Since that time their successors in interest, through their attorneys, have taken charge of the [387]plaintiff’s side of the case, without a change of the title of the cause or of the attorney of record.' It was known, however, by the defendants’ attorneys for some years prior to 1877, as appears front the affidavit of one of them, that other attorneys than the attorney of record were representing other parties than the plaintiff of record in the prosecution of the action. In 1877, the plaintiff of record and his attorney signed a stipulation, which was also signed by an attorney of some of the defendants, dismissing the action without costs to either party, and upon that stipulation being presented to the Court by the attorneys of some of the defendants, an order dismissing the action was entered. As soon as the successors in interest of the plaintiff and their attorneys were informed of that order, they moved to vacate and set it aside. The motion was denied, and from the order denying that motion this appeal is taken. The plaintiff has never been a resident of this State, and his attorney left this State ten'or twelve years before signing the stipulation above referred to, and has not since returned.

Had the plaintiff in the action the right to dismiss it, after having transferred his interest in the subject-matter of the action to other parties? Section 385 of the Code of Civil Procedure provides, that in case of any transfer of interest, 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. Under that section, it was the right of the successors in interest in this case to prosecute this action in one of these forms. The party who had transferred his interest divested himself of any power to control the action. He could not dismiss it, because his successors had a right to have it continued. The validity of the order of dismissal in this case rests solely upon the consent of the original plaintiff, given ten years after he had transferred his interest in the action. As he had no right to interfere with the action, the Court, on being advised of that, should have vacated the order based upon it.

The attorney who signed the stipulation, as the attorney for the plaintiff, did not assume to act as the attorney of his successors in interest. In his affidavit, he says that he himself was the real plaintiff in interest at the time of the commencement of