Deane v. Kent Circuit Judge

Ostrander, J. (after stating the facts). Upon this application this court will not consider the merits of the principal case, and there is involved no question concerning the authority of attorneys and solicitors generally to bind their clients, parties to an action, by stipulation entered into in good faith. Whether or not, complainant refusing, other creditors who have exhibited demands may assume the control and direction of the litigation, such creditors have at least acquired an interest in the proceeding which the court is bound to consider upon any application for leave to discontinue the suit. And this was held in a similar case where it appeared that the complainant, after procuring an injunction and the appointment of a receiver, had been satisfied. Fay v. Erie & Kalamazoo Railroad Bank, Har. (Mich.) 194. See, also, Hoffman v. Bank of Minot, 4 N. Dak. 473; Belmont Nail Co. v. Columbia Iron & Steel Co., 46 Fed. 336; and 3 Comp. Laws, §§ 9760, 9761. Upon the authority of Fay v. Erie & Kalamazoo Railroad Bank, the right of the complainant to discontinue its suit without leave of the court is denied. It appears to be contended by relators that, inasmuch as the defendant corporation is not a party to the stipulation, an order made pursuant to the stipulation would have the effect of discontinuing the suit as to relators, leaving it to stand as one pending between the complainant and the judgment debtor. But it is apparent that the purpose of the stipulation was to settle the question of costs, and it is not contended that the right of complainant to discontinue the suit grows out of the stipulation. As the only effect claimed for the stipulation is that it entitles relators as matter of law to a discontinuance of the suit as to them, and as we are of opinion that com [647] plainant may not as matter of right discontinue the suit, it follows that relators are not injured by the order striking the stipulation from the files. The writ of mandamus is denied, with costs to petitioners in the court below. Hooker, Moore, Brooke, and McAlvay, JJ., concurred.