Moore & Browder ex rel. Alter v. Bres

Labatjve, J. This case presents a sole question of law; none of fact. The plaintiffs, Moore & Browder, brought this suit for the use of Chas. [484] E. Alter, and at the same time, on filing a bond and the affidavit required by law, sequestered sixty-four bales of cotton in the hands of the defendant, upon which they alleged a privilege. They pray that there bo a judgment against the said defendant for the use of said Alter, ordering said cotton to be delivered to them, to be sold to pay the debt. On the 20th November, 1885, on motion of R. H. Marr, of counsel for' Moore & Browder, it was ordered by the Court that this suit be dismissed so far as Moore & Browder were concerned, without prejudice to the right of C. E. Alter to prosecute his demand. The Court ordered that said motion and order be served on Elmore & King, as attorneys for Alter, and that they show cause on Saturday next why the said suit should not be discontinued, as moved for. Elmore & King answered that said Moore & Browder had no interest in this suit, that they were nominal parties, and had no right to interfere or do anything adverse to the rights of C. E. Alter. On the 25th November, 1865, on motion of Race, Foster & Merrick, of counsel for defendant: It was ordered by the Court that plaintiffs and Charles E. Alter, show cause instanter why the order allowing said Alter to bond the 64 bales of cotton sequestered, should not be rescinded, as having been wrongfully obtained, substantially on the grounds: That the ten days had not expired. That the plaintiffs had taken a rule to dismiss the suit; that said Alter not being plaintiff, could not bond; that the petition discloses no legal right in said Alter to the possession of said cotton as owner, or in any other manner, nor any right or privilege upon the same. On a hearing the Court set aside the order allowing Alter to bond the cotton, and ordered the Sheriff to take possession of the same subject to the order of the Court. On the 25th November, 1865, the motion to discontinue the suit, filed by Moore & Browder, having been considered by the Court, the suit was ordered to be dismissed, plaintiffs paying the cost. From this judgment, dismissing the whole suit, and setting aside the order allowing the cotton to be bonded by said C. E. Alter, this appeal is taken by said C. E. Alter. Now the plaintiffs, Moore & Browder, having dismissed the suit on their own motion, the question arises : Is Charles E. Alter, for whose use the suit is brought, a party plaintiff who can prosecute the suit and stand in judgment ? It is contended by his counsel that he is the real plaintiff, and that Moore & Browder are nominally so. On the other side, it is urged by the defendant’s counsel, that there is now before the Court no party plaintiff who can carry on the suit to judgment. The practice of sueing for the use of another, is based upon the ground that whoever has the legal title and can sue for himself, may sue for tho benefit of whom he pleases, in the same manner as he might dispose of [485] the funds after judgment, if he sued in his own name. 19 L. R. 207. The question presented here is whether the plaintiffs, Moore & Browder,. had the control of the suit, and having dismissed it, whether C. E. Alter remained in Court with legal authority to prosecute it for his own benefit. We are of opinion that the right to sue, being in Moore & Browder, they had the control of the suit which, being dismissed on their own motion, left C. E. Alter without legal right or authority to prosecute it to judgment for his own benefit. It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.