Brazier v. Tarver

GOLDTHWAITE, J. The controversy here, is not between the plaintiff and defendant to the case, but results from a desire in the plaintiff named on the record, to dismiss his suit, which is opposed by one claiming to be entitled to carry it on for his own benefit in the other’s name. We think it very clear, that when a suit is once dismissed at the instance of the plaintiff upon the record, that the correctness of the proceeding cannot be inquired into, upon a writ of error; -for this course would involve the defendant in a controversy in which he has taken no part, and in which he has no interest. We do not doubt that it is the duty of a Court to protect the rights and interests of those who are beneficially interested in suits or choses in action. Such suitors can, and ought to be protected, against the improper interference of the plaintiff on the record, but the only mode to correct erroneous action in this particular, is by mandamus. In the present case, however, we think there was no obligation cast upon the Court to open the time limited by the actual order entered upon the minutes It is not material to inquire by which order the person in interest was to govern himself. If by that entered on the minutes, then, no time being specified, the security ought to have been given within a reasonable time; and if by the other, within four months. In either event the order was not complied with, and although, in matters of this nature, the Court might very properly open the order and allow further time, its discretion is absolute and will not be controlled. Judgment affirmed.