Kinsey v. Lessee of Sensbough

By the Court. Starnes, J. delivering the opinion. [1.] We do not entirely agree with the decision of the Court, ■upon the motion to dismiss the case, because Harrison Rogers Rad shown no connection between his title and that of Joseph [542] Sensbough; yet, we think the Court was right in- refusing the motion. That motion rested upon the affidavit of Dawson A. Walker, Attorney at Law for Rogers, one of the plaintiff’s lessors, (and he who seems to have been chiefly interested,) and on nothing else. As the case stood, that showing did not authorize a dismissal of the suit. The Counsel making this motion seems to have lost sight of the peculiar character of this action. He should remember that the fictitious John Doe is here the plaintiff, and that according to the record as it was presented, Joseph Sensbough had precisely the same relation to the case which Harrison Rogers had. Both were lessors of the plaintiff. Joseph Sens-bough was therefore as much entitled to the benefit of the verdict as was Harrison Rogers. The evidence introduced showed title in the former, and failed to connect the latter with that title. And there is nothing in the evidence of Mr. Walker which goes to negative the conclusion, that the recovery by the fictitious plaintiff should enure to the benefit of Joseph Sens-bough. Although that Attorney may not know him, and may ■not represent him, yet Harrison Rogers may know him, and be authorized by him to have this suit brought. So that for all that appears in the affidavit, this is a good recovery. As to the difficulty which may arise, when the Sheriff shall come to execute the writ of habere facias, in putting any other person than Joseph Sensbough in possession ; that point is not at present presented for our decision, and it is not necessary that we should express any opinion upon it. t [2.] We affirm the judgment of the Court, also, in refusing to dismiss the appeal. Taking into consideration the peculiar character of this action, we are not sure but that the appeal of Harrison Rogers, one of the plaintiff’s lessors, may be said correctly to have carried the cause to the appeal for all of them. But waiving this, we think that the motion to dismiss, presented as it was in the concluding speech of defendant’s Counsel, was made too late. If it had been made at an earlier pe [543] riod, and the Court had held the appeal to have been irregularly entered, it might have been perfected, and thus delay and expense would have been saved. It would not, therefore, have been just to sustain the motion at that late stage of the cause.'