Foote v. Myers

Campbell, C. J. delivered the opinion of the court. The' demurrer to the plea in abatement should have been sustained. The two actions are not the same. One is the suit of a private person, instituted by- himself, and subject to his control; the other is the petition of the district attorney of the Ninth Judicial District, in a matter affecting the public interest, and, although it is in the name of the officer, when it should have been by the State on his relation, and although the name of Chalmers, as relator, is used, it being instituted by the district attorney, is the suit of the State, and is independent of the suit of Chalmers, although both may be intended and expected to enure to his benefit. The judgment is reversed ; the demurrer to the plea is sustained. Chalmers, J., took no part in this decision.