#### McRobbie v. Higginbotham et al.

1. An order dismissing the petition of an intervenor is no ground off appeal for the defendant.

2. A temporary restraining order prohibiting defendant to pay certain rents is no defense to an action for the same after the dissolution of the injunction.

*313*Appeal from District Court of L<:ce County.*

This was an action by the appellees, S. C. Higginbotham and G. M. Barnes, against the appellant, John J. M. McEobbie, for the recovery of rent accrued upon a lease of certain real estate premises made by appellees to appellant. In his answer, appellant admitted the execution of the lease, possession thereunder, and that the amount demanded had accrued as rental thereunder, and alleged that, prior to the commencement of the action, he had been enjoined from paying over the rentals by an order of court in an action wherein the Leadville Improvement Company was plaintiff, and the said Higginbotham & Barnes and others were defendants, and that the said Higginbotham & Barnes had been enjoined from collecting said rentals. In the replication thereto appellees denied each and every of the allegations of this answer; and, touching the said injunction proceedings, alleged that, on the 26th day of April, 1879, the Lead-ville Improvement Company instituted an action of ejectment in the district court of Lake county against E. L. De Lay, F. M. Cottrell, Stephen Mallen and James M. Franklin for the possession of the said premises; that neither the said Higginbotham nor Barnes was a party to such action; that on the 11th day of April, 1882, said court rendered judgment in favor of said plaintiff company against the defendants therein for the possession of said premises; that an appeal from said judgment was taken and perfected to the supreme court long prior to the application of said company for an injunction and receiver, and that said appeal was still pending; that after said appeal was taken, and in the month of February, 1883, the said Leadville Improvement Company filed in the district court of Lake county, in said action, a.petition for injunction and receiver, and that said petition was certified to the fourth judicial district, £,nd the judge thereof! on the 26th day of March, 1883, made the *314order upon which the temporary writ referred to in the answer was issued, and that said writ was at all times wholly and absolutely void; that the petition upon which said writ was issued shows upon its face that the court granting the same had no jurisdiction pither of the subject-matter or the persons, and that said writ was not filed in any action pending in said court; that afterwards, and on the 3d day of April, 1883, said district court of the fourth judicial district was ¡prohibited by the supreme court from taking further action in said proceedings; that thereupon the said company abandoned the said application in said district court, and filed in the supreme court, in said case there pending on appeal, the same petition for an injunction and receiver, and that after-wards, in the month of May, 1883, upon final hearing thereof, the said court denied the prayer of said petition; and that all the same had transpired before the commencement of this action. On November 21, 1884, being the day upon which the said case had been set for trial, one Charles T. Limberg filed his petition of intervention therein, alleging ownership of the premises described in the said lease, to wit, lots 1 and 2, in block 5, in the Leadville Improvement Company’s addition to the city of Leadville, Lake county, Colorado, and that he had been the owner thereof ever since the 20th day of February, 1879; that on that day the said Higginbotham & Barnes had unlawfully dispossessed him of the said premises, and had since then, until the 5th day of December, 1883, withheld the same from him; that he then recovered possession thereof; that the rentals, for which this action was brought to recover, accrued prior to that time, and during the time that the said premises were so wrongfully withheld, and asked recovery of the same as against both parties to the action. Whereupon the said appellees filed their motion .as follows: “Now come the plaintiffs herein, and move the court to strike out and from the files of this court the petition of intervention of *315Charles T. Limberg in this cause, for the following reasons, to wit: (1) Because said petition of intervention was filed without notice to the plaintiffs herein; (2) because there is an action now pending in this court in which said Limberg is plaintiff and these plaintiffs are defendants, wherein said Limberg is seeking to recover from these plaintiffs on the same cause of action set forth in said petition of intervention;' (3) because said petition of intervention does not show that said petitioner was in any way privy to the contract sued on in this action; (4) because the event of this action does not in any manner affect the rights or pretended claims of the petitioner, nor are any of the pretended claims of said petitioner involved in this action; (5) because said petition does not allege or show said petitioner to have an interest in the matter in litigation in this action, or in the success of either of the parties thereto, or against both; (6) because said petition does not show said petitioner to have been entitled to the mesne profits of the property described in said petition.” And the court sustained the said motion. Trial had, and judgment in favor of the said appellees against said appellant in the sum of $2,904.23. Except the petition itself, nothing is shown here of the facts touching the motion to strike out the petition of intervention, andón the trial of the case the evidence sustained the allegations of the replication touching the proceedings for injunction and receiver in the case referred to.

Messrs. H. Moody, C. H. Wenzell, Taylor, Ashton and Taylor, and Frank W. Owens, for appellant.

Messrs. Rogers and McCord, E. M. Hubburd, and Bissell and Gunnell, for appellees.

Stallcup. C.

It is argued here that the court erred in striking out or dismissing the petition of intervention, and in maintaining this action. It does not appear that *316there was any error against appellant in the court’s order denying the intervention. We do not, however, concede that any question upon this order could arise in any way upon this appeal, as the order was against the intervenor and not against the appellant. The evidence touching the proceedings for injunction and receiver, in the case referred to, does not in any way show that the temporary restraining order made therein constituted any reason against the maintenance of this action or defense to the same. The judgment should be affirmed.

De France and Rising, CO., concur.

Per Curiam.

For the reasons above given in the opinion of Commissioner Stallcup the judgment is affirmed.

*Affirmed.*