Hallett v. Hastie

STONE, J. If this motion were prosecuted by Sibley and others, the tenants in possession, or by Smith, their landlord, seeking to have the costs taxed against the parties not on the record, but who, it is alleged, had this suit brought, or against the attorney who used the name of Mr. Hallett, as he alleges, without his consent, a very different question would be presented from the one brought to view by this record. We need not, and do not, announce what would be our decision on such motion. See Thrustout v. Nixon, 10 Barn. & Cress. 110; Masters v. Gray, ib. 615; Evans v. Rees, 2 Ad. & El. (N. S.) 334 ; Jackson v. Van Antwerp, 1 Wend. 295; Canby v. Ridgway, 1 Binney, 496; Norton v. Rich, 20 Johns. 475. In the present case, suit was brought on the demise of Mr. Hallett, and, as his affidavit discloses, without his knowledge. While the suit was pending — but at what stage of the litigation the record does not inform us — he received notice that his name had been thus used. Although he does not appear to have sanctioned this use of his name, but, shortly before the trial, wrote to the plaintiff’s attorney, disclaiming the suit; yet, so far as the record discloses, he took no steps to have his name stricken from the file, or to notifiy the defendants that he dis. [167] owned the litigation. In fact, we do not hear any public complaint from him, until execution against him, to be levied de bonis testatoris, had been returned “no property,” and another, to be levied de bonis propriis, has been actually levied on his property. In the case of People v. Brady, 6 Johns. 318, a lessor of the plaintiff, whose name had been used against his consent, and who was in prison under a judgment for costs, was, on motion, discharged by the court, it appearing he had no interest in the litigation. At a subsequent term, when the attorneys who instituted the suit had been brought before the court, on a rule to show cause why an attachment should not issue against them for the costs, they made affidavit that the defendant, Brady, had consented to have his name used as one of the lessors in the ejectment suit. Thereupon, the lessor being again before the court, judgment was suspended against him, that he might, by suit against the attorneys, test the question of their liability; the court, on the motion, refusing to try the disputed question of fact. — S. C., 7 Johns. 539. In Colvard v. Oliver, 7 Wend. 497, it was ruled, that a party in intei-est in a suit, who prosecutes in the name of another, will, on the application of such nominal party, be directed by rule of court to pay the costs adjudged in the suit against the party to the record. In the later cases of Miller v. Adsit, 18 Wend. 672-4, and Bendernagle v. Cocks, 19 Wend. 151, the doctrine of the above cases was somewhat shaken. In Livingston v. Clements, 1 Hill, (N. Y.) 648, the court refused to make an order that the party who was really interested in the defense, though not a party to the record, should pay the costs; “especially as the facts on which the motion rested wTere rendered doubtful by counter affidavits.” — See, also, Hayward v. Giffard, 4 Mees. & Weis. 194. It will be observed by examining the authorities above cited, that the different courts, and even the different decisions of the same court, do not always announce the same principle in the same terms. The whole system of [168] taxing costs against parties not known upon the record, seems to rest on the power of courts over its own officers, and those who employ them as agencies in carrying their purposes into effect. It is not a substantive or independent ground of its jurisdiction, but an incident to the power it exerts over its suitors and officers. iTeuce, the power invoked in this case is never exercised, except in cases where the facts are clear and undisputed. It must be conceded that, in this case, Mr. Iiallctt gave uo authority for the institution of the suit in his name, as lessor of the plaintiff'. It is equally true that he was informed, while the suit was pending, that his name had been so used. How soon after the institution of the suit he received this information, the record does not disclose. Mr. Hallett had this information, and could have embodied it in his affidavit. His failure to do so j ustifies us in presuming that he received the information long before the suit was tried and determined against him. Still, he permitted the suit to progress in his name, and contented himself with addressing a letter to the plaintiff’s attorney, in which he disclaimed the suit, and denied the right to bring it in his name. ¥e are not informed that the defendants, or the court, had any notice of his disclaimer, or that any motion was ever made to have the suit dismissed. The motion made in this case, as we understand it, had for its object the discharge and vacation of the judgment for costs rendered against Mr. Hallett, and the rendition of a new judgment, against Aiken and Hastie, or their attorneys, as it is alleged. The record does not infornM ns that the parties sought to be taxed with the costs arel solvent, or that they are citizens of Alabama. The defendants, having no notice pending the litigatiou’that-Mr. Hallett’s name had been used against his consent, nw|re authorized to look to his solvency, if it existed, as a guaranty that the costs would be paid. Mr. Hallett having failed, within a reasonable time after he had notice that the suit was pending in his name, to move for security or indemnity against costs, or that the suit be dismissed, we [169] think it our duty, if there existed no other reason, to withhold the relief which he seeks. We do not now announce what would be our opinion, if this motion were prosecuted by the defendants in the action, or if Mr. Hallett had moved the court, by virtue of its power over its officers, to compel the attorney who had used his name to pay the taxed costs. The question, in either of those forms, is not brought before us. This motion sought another and a different object, and as made we overrule it. Judgment affirmed.