Opinion
Department Two
Appeal from a judgment of the Superior Court of Tulare County.
COUNSEL:
Frederick S. Stratton, Latimer & Morrow, and William M. Pierson, for Appellants.
Attorney-General Marshall, for Respondent.
JUDGES: Foote, C. Belcher, C. C., and Hayne, C., concurred.
OPINION
FOOTE, Judge
This was an action on behalf of the people of the state of California, upon the relation of the real parties in interest, instituted for the purpose of obtaining a decree to set aside a certain patent dated November 22, 1883, to swamp and overflowed lands lying in the county of Tulare.
The attorney-general of the state, upon a proper petition presented to him, authorized the relators to use his name, and to bring this suit in the name of the people as plaintiff.
An undertaking in due form was afterward filed in the proper court, conditional to save the state harmless from all costs.
The complaint signed by the attorneys of the real parties in interest, the relators, was filed according to law on January 19, 1884. The attorney-general, however, on the 7th of March, 1884, filed in the court where the action was pending a withdrawal of his authority for the further prosecution of the action in the name of the people, and requested that the action be dismissed. The court below granted his request, against the objection and subject to the exception of the plaintiffs, the relators.
From the judgment made in the premises the latter have appealed.
The attorney-general, as such (the state having no direct interest in the event of the suit, and his permission having been given to the real parties in interest seeking relief), had no right or authority to withdraw his consent thus previously given to the use of his name, to the prejudice of the relators. (People ex rel. Rondel v. N. S. F. H. & R. R. A ., 38 Cal. 564; People v. Jacob , 12 P. Rep. 22.)
The judgment of dismissal should be reversed, and the cause remanded for trial.
The Court. -- For the reasons given in the foregoing opinion, the judgment is reversed, and cause remanded for a new trial.