Harris v. Swanson & Bro.

It is an elementary principle, that when the legal interest in a cause of action, whether it arises out of contract, or is ex delicto, is joint, residing in several persons, all who are living must join in the action founded on it. One or more of the parties may use the name of all in the commencement and prosecution of the action. If others are unwilling to join in the prosecution, the unwillingness does not authorize a dismissal of the suit. They can and will, on a proper application, be protected by an indemnity, against costs, from those prosecuting the suit. All courts have an inherent power to protect themselves and their suitors from an abuse of their process, and to protect the rights and interests of those who have beneficial interests in the subject matter of suits. In Cunningham v. Carpenter, 10 Ala. 109, one of the several partners instituted a suit at law in the name of the partnership, and another partner came in and proposed to dismiss the suit so far as he was concerned. The dismissal, if allowed, would have been fatal to the suit. This court said, there would be no substantial difference between allowing a partner to extinguish a partnership debt with his individual debt and allowing him to interfere with a suit his partner had commenced, especially when the offer ivas made to secure him against costs.

The statute authorized the amendment of the complaint, by the insertion of the name of Wright as a plaintiff. When the complaint was amended, Wright, if unwilling to join in the prosecution of the suit, could have demanded, from Harris indemnity against the costs, and a reasonable time should have been allowed to furnish it. It was tendered im*301mediately, however, and with its character and sufficiency Wright was satisfied. Being satisfied, his personal unwillingness to prosecute the suit is immaterial, he is not bound if it results in a judgment favorable to Harris and himself, to participate in its fruits; but he is without power to arrest or impede the prosecution of the suit. The indemnity being satisfactory to Wright, it w'as not the province of the court to require that any other should be given' in lieu of it. It is for his personal protection the indemnity is required, and when such is tendered as he is satisfied with, the court is without further power in the premises.

Beversed and remanded.