#### STATE ex rel. WEINSTEIN CO., Relator, *v.*DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT et al., Respondents.

(No. 1,949.)

(Submitted May 23, 1903.

Decided June 29, 1903.)

*Claim and Delivery*— Parties— *Substitution*— Appealable *Orders*— C *ertiorari.*

1. In an action in claim and delivery, tbe court, under Code of Civil Procedure, Section 588, cannot make an order substituting in place of tbe defendant a claimant of tbe property,’ on the application of tbe defendant who has no control over the property (because of its previous delivery to tbe sheriff), and no power to deliver it on tbe court’s order.

2. In ’ order that *certiorari*may lie, three requisites are indispensable, namely : excess of jurisdiction; absence of tbe right of appeal; and lack of any other plain, speedy, and adequate remedy.

3. under Session Laws 1899, p. 135, amending Code of Civil Procedure, Section 1722, and providing for an appeal from a final judgment, an order substituting a claimant of property, on application of defendant in a claim and delivery action, in lieu of defendant, is not a final determination from which an appeal is allowable.

*4464. under Code of Civil Procedure, Section 1742, providing that on appeal from a judgment the court may review any intermediate order or decision excepted to which involves the merits or necessarily affects the judgment, an intermediate order substituting a claimant of property for defendant in a claim and delivery action may be reviewed on appeal from the final judgment, on exception reserved, and hence *certiorari*will not lie to have the order annulled as in excess of jurisdiction.

OeigiNal application for *certiorari*by tbe state, on tbe relation of tbe Weinstein Company, to tbe district court of tbe First judicial district and Hon. J. M. Clements, a judge thereof, to have an order annulled as in excess of jurisdiction.

Dismissed.

*Messrs. Nolan <& Loeb,*for Relator.

*Messrs. McOonnell & McConnell,*for Respondents.

MR. CHIEF JUSTICE BRANTLY

delivered tbe opinion of tbe court.

*Certiorari*to tbe district court of Lewis and Clarke county. On May 9, 1903, tbe relator brought an action in that court in claim and delivery against one Thomas Travis to recover tbe possession of certain dry goods, hardware and jewelry. Tbe complaint is in tbe ordinary form, alleging title and right of possession in plaintiff. It further alleges “that tbe defendant became possessed of tbe said goods and chattels, and wrongfully detains tbe same from the plaintiff,” and has refused . to return them to tbe plaintiff, though demand has been made for them, to tbe damage of plaintiff in tbe sum of $100 . Tbe prayer is for a return of tbe property, or for tbe sum of $300 in ease return cannot be bad, and for $100 damages. Upon tbe filing of tbe complaint, tbe relator, desiring to have tbe property delivered to it, made tbe affidavit required by tbe statute and delivered tbe same, with proper indorsement thereon, to tbe sheriff, accompanied by a good and sufficient undertaking in double tbe value of tbe property alleged in tbe complaint. Thereupon tbe sheriff took tbe property from tbe defendant. On May 13th, after notice to tbe relator, tbe plaintiff in tbe action, and to one *447Paul A. Tomcbeck, tbe defendant applied to tbe court for an order substituting tbe said Paul A. Tomcbeck as defendant in tbe action in bis stead, and discharging bim from liability. Tbe application was supported by an affidavit to tbe effect that tbe defendant neither bad nor claimed an interest in tbe property, and that tbe said Tomcbeck, without collusion on bis part, bad also made demand upon bim for tbe property, claiming to be tbe owner of it. After argument by counsel for relator and tbe said Travis, counsel for tbe latter also representing Tomcbeck, the court made an order discharging tbe defendant from liability to either claimant and substituting Tomcbeck as defendant in tbe action. At tbe time the order was made tbe property was in tbe possession of tbe sheriff, and this fact appeared from tbe affidavit of Travis. This proceeding was thereupon instituted to have tbe order annulled -as in excess of jurisdiction.

Tbe defendant in this proceeding has interposed a motion to quash tbe writ, on tbe grounds that tbe district court bad jurisdiction to make tbe order, and that tbe relator has a plain, speedy and adequate remedy by appeal.

1. Did tbe district court have jurisdiction to make tbe order ? Tbe application was made under Section 588 of tbe Code of Civil Procedure, which, so far as applicable to this case, declares :

> “Sec. 588. A defendant against whom an action is pending upon a contract, or for specific personal property, may at any time before answer, upon affidavit that a person not a party to tbe action makes against bim, and without any collusion with bim, a demand upon such contract, or for such property, upon notice to such person and tbe adverse party, apply to tbe court for an order to substitute such person in bis place, and discharge bim from liability to either party, on bis depositing in court tbe amount claimed on tbe contract, or delivering tbe property, or its value, to such person as tbe court may direct; and tbe court may, in its discretion, make tbe order. * * *”

Whether tbe order shall be made is lodged in tbe sound discretion of tbe court having jurisdiction of the action. To move *448this discretion, however, it is indispensably necessary that certain facts exist and are made to appear in tbe affidavit. These are: (1) That an action is pending and the applicant is the defendant; (2) that the person sought to* be substituted is a stranger to the action; (8) that such third person has made a claim upon the defendant for the property or fund in controversy, without collusion with the defendant, which necessarily implies that the defendant has no interest in the property or fund; and (4) that the applicant is able and stands ready to pay into court the amount of the fund or to deliver the property or its value to such person as the court may direct. At the time the application was made it was not in the power of Travis to deliver the property under the order of the court; indeed, the order made is silent as to the disposition of the property for the time being, the court evidently entertaining the view that, as it was in the possession of the sheriff, it was not necessaray to make any order with reference to it. In older to have the benefit of the statute, Travis should have availed himself of the privilege granted him under Section 849 of the Code of Civil Procedure, and regained possession from the sheriff, thus enabling the court, in making the order, to put the plaintiff in 'the action and the substituted defendant in the same relative positions in which the plaintiff and he himself were at the beginning of the action. When the order was made, the defendant had no control of the property. It was in the hands of the sheriff, ready to be delivered to the plaintiff in case the option granted by Section 849, *supra,*was not exercised by the defendant. The court could not make any order with reference to a disposition of it; in fact, it had no jurisdiction to make any order with reference to it, nor to control the disposition of it in any way, except to render a final judgment in regard to it at the conclusion of the action. Though the statute grants the right to the order upon a proper showing, the showing made must meet all of its substantial requirements; otherwise, the court has no power to make the order. *(Edgerton*v. *Ross,*6 Abb. Prac. 190; *Vosburgh*v. *Huntington,*15 Abb. Prac. 254; *Pelham**449*Hod Elevating Co.*v. *Baggaley*(Cily Ct. N. Y.), 12 N. Y. Supp. 219.) It must follow, therefore, that the order in question here was made in excess of jurisdiction.

2. Is the order appealable? If so, or if there is any other adequate remedy, *certiorari*will not lie to review it; for, in order that this remedy may avail, three requisites are indispensable, namely, excess of jurisdiction, absence of the right of appeal, and lack of any other plain, speedy and adequate remedy. (Section 1941, Code Civ. Proc.; *State ex rel. King*v. *Dist.*Court, 24 Mont. 494, 62 Pac. 820; *State ex rel. Whiteside*v. *District*Court, 24 Mont. 539, 63 Pac. 395.)

The defendant contends that the order is a final judgment, and is appealable under the provisions of Subdivision 1 of Section 1122, as amended by the Act of 189'9 (Sess. Laws 1899, page 146). This contention rests upon the assumption that, it is a final determination of the rights of the parties so far as concerns the relator and Travis. With this view we do not agree. The order has none of the essential characteristics of a final judgment. It is not to- be executed by a writ or other process; nor is any act required of any of the parties by the doing of which he will be injured in the meantime, in the sense, at least, that he will be finally deprived of any substantial personal or property right, or suffer an invasion thereof, unless he can prosecute an appeal directly from the order itself. Prom this point of view it does not fall within the principle of the case of *State ex rel. Heinze*v. *District*Court, 28 Mont. 227, 72 Pac. 613, but is merely an interlocutory or intermediate order, and falls within the class of orders which may be reviewed upon appeal from the final judgment in the case, upon exception reserved, under Section 1742 of the Code of Civil Procedure; otherwise, this and all similar orders, incidentally determinative of some right of a party to an action, must be held to be final judgments, within the definition of that term as laid down in Section 1000 of the Code of Civil Procedure. Therefore no direct appeal lies under Section 1722, *supra.*

*450It remains to inquire whether there is any other adequate remedy. In our judgment there is. In case it turns out upon final judgment that the plaintiff has suffered a prejudice, or has been aggrieved by a failure to obtain all his rights in the premises, he may appeal from the final judgment, whereupon this court, having the order before it upon exception, may review it under Section 1142, *supra.*For the time being the result is, perhaps, inconvenience and delay, but not more than may be the result of any other intermediate order made during the progress of any ease before a trial is. finally reached on the merits. Nor does this case fall within the exception recognized by this court in *State ex rel. A. C. M. Co.*v. *Dist. Court,*26 Mont. 396, 68 Pac. 570, 69 Pac. 103, *State ex rel. B. & M. C. C. & S. M. Co.*v. *Dist. Court,*27 Mont. 441. 71 Pac. 602, and similar cases, in which interlocutory orders have been annulled by the writ of *certiorai"i.*In this class of cases, though the particular order may be reviewed upon appeal from the final judgment, such review is inadequate, for the reason that all -the- injury which the- complaining party may suffer will have been done long before review can be reached upon appeal from the final judgment.

It follows that, though the order was in excess of jurisdiction, the remedy by appeal from the final judgment is inadequate, and the writ should have been denied. The writ is therefore quashed, and the proceeding dismissed.

*Dismissed.*