Hopkins v. Harper

46 Ark. 251

• Court: Supreme Court of Arkansas
• Decided: November 15, 1885
• Status: Published

Opinion

Cockrill, C. J.

Tillar, Stanley & Co. sued the appellees before a justice of the peace upon a promissory note-executed by them to Jerry Hopkins, as administrator of the estate of Jesse Harrell, deceased, alleging that it had been assigned to them. On the day set for trial, the plaintiffs, through their attorneys, asked and were granted leave to permit Hopkins, as administrator, to prosecute the action upon the note. A formal complaint was thereupon filed, by Hopkins, as administrator, against the appellees. The appellees appeared to this action, represented to the court that Tillar, Stanley & Co. were interested in the note, and procured an order directing them to be made parties. Tillar, Stanley & Co. then joined the administrator as plaintiffs, the case was continued for trial until a day in the next month, when the appellees answered, a trial was had and judgment rendered for the plaintiffs. The appellees carried the case, by appeal, to the circuit court, and there moved to dismiss the action, because Tillar, Stanley & Co. had no interest in it. The administrator insisted upon prosecuting the action irrespective of the presence of Tillar, Stanley & Co., but the court would not permit it, and dismissed the action. This was error. The filing of the complaint before the justice, by the administrator was the institution of a new suit, and not a continuation of the action begun by Tillar, Stanley & Co. State v. Rottaken, 34 Ark., 144. The appellees voluntarily appeared, and when the case was carried by appeal to the circuit court, it was there for trial de novo, upon the merits, rather than for the correction of errors conimitted by the justice of the peace. The presence of Tillar, Stanley & Co. did not affect the jurisdiction of the court. They are neither-necessary nor proper parties to an action by the administrator ; -they came into the suit at the defendants’ instance, and when the defendants subsequently manifested disapproval of their presence, they offered to retire from the action. We think they should have been allowed to do so, without embarrassment to the administrator.

The judgment must be reversed, and the case remanded, with instructions to reinstate it, and let it proceed as an action by Hopkins, as administrator, against the appellees.