Stephenson v. . Peebles

Eaiijcloth, J. This action was. commenced by Samuel A. "Warren, who died, and an administrator on his estate was made plaintiff, upon whose death an administrator de bonis non was appointed on said estate. The administrator d. b. n. declines to prosecute the action and refuses to be made party plaintiff'. After the death of Warren’s administrator, one Edmund Jacobs filed an affidavit in the cause, setting forth that the action was originally instituted for the sole use and benefit of him, the said Jacobs, and that Warren had no interest in the recovery except as trustee for said Jacobs, and prayed to be made party plaintiff, and to be allowed to use the name'of Warren’s administrator d. b. n., for the purpose of prosecuting the action, and proposed to conduct the suit and assume all responsibility for the costs. After his death, his administrator renews and urges the same application by an affidavit substantially the same as Jacobs’. Upon this motion the ease is before us and we neither express nor intimate any opinion on the merits of the controversy. For the purposes of this > motion we must assume that Jacobs’ allegation is true, in order that he may have an opportunity to be heard; and we think on this assumption that the refusal of Warren’s administrator to be made a party, should not be allowed to deprive Jacobs’ representative of an opportunity for an investigation into the merits of the controversy between plaintiff and defendant, on the conditions proposed by the administrator of Jacobs. It is our opinion that the administrator of Jacobs should not be made party plaintiff, as it would introduce unnecessary confusion in the case, and that part of His Honor’s order is reversed. It is also our opinion that upon filing an indemnity with *366 the Clerk in this case, to be - approved by him, against the costs of the action, he is entitled to have the administrator of Warren made a party plaintiff, and to be allowed to prosecute said action in his name, and in this respect the order made below is affirmed. We concur with Ilis Honor in refusing- to allow the action to abate on defendant’s motion. The administrator died in March, 1876, and in December following, Jacobs applied by affidavit and motion to have the succeeding administrator made a party, and there is no grounds on which it should abate. The refusal of the administrator cl. b. ??. to come in as a party, cannot have the effect to deprive others of their rights, which were demanded in proper time. . This opinion will be certified and the ease remanded for further proceedings; each party to pay his own costs in this Court. PeR Cueta.m. Judgment accordingly.