Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-06
SUPREME COURT.
DECISION OF CASE FILED YEsTER-
DAY.

'0n.es Bennett, Respondent, as. Richard O. Jolzy
montgomery G. Tiers and Catherine 4. Rob
anson' defendants, and o. p. Whitcon5, In.
tereenor and appellant.
The object of this action was to correct
nlsdescrlptlon of premises, occasioned, as is
alieggAd, by lnadvertance and mutual mistake |
IN tne execution of certain powers of attorney
anu a certain deed made in pursuance thereof,
on the z2d day of September, 1876, for the
purpose OF conveying to the plaintiff certain |
premises purchased by him of the |
ae1endant and to reform such instruments in |
conformity with the actual agreement and in
tentlon OF the parties thereto. Defendants
made no answer to the complaint. but suffered
a defauit to be entered against them, after
such default the appellant herein, Mr.. Whit
comb, procured upon his affidavit accompanied
with proposed complaint as intervenor, an
order upon the plaintiff to show cause why
upon the facts and grounds therein stated he
should not be permitted to intervene in the
action and become party thereto by filing and
serving his said complaint for the purpose of
defending as action as such inrervenor
Upon the hearing the application was denied
and the order to show cause discharged From
this order the interviewer appeals to this court,
and the respondent made the preliminary OBJ
lection that the appeal will die, because the
order is not an appealable one, and dismissal
of the appeal is asked. The statute Och. 30,
Gen. Laws, 1876, amendatory of section ~,
oh. Sc. gen. stat.) under which the right TO in
tervenor is asserted does not seem to contem-
plate the necessity of obtaining any prior leave
Of the court to serve and HE
a complaint in order to be-
come party intervenor in an action.
In case party brings himself within the
statute by the facts stated in his complaint. his
right of intervention would seem to be an alb
solute one, not dependent upon either the favor
or discretion of The court. All he is required
| to do is to serve and Tile within the proper
time the requisite com plant, and he thereupon
becomes a partyto the action with the right to
be heard in respect to the matter in litigation
so far concerns any interest dis closed by the
complaint whichhe may have therein to be af-
fected by it's result according to strict practice,
| therefore the application of appellant for leave
| to file and serve TIN proposed complaint as an
| intervenor herein vas wholly unnecessary, but
we see no valid objection, however, to the
| course which the court pursued in this in
! stance, with the censent of all parties, of
sidering the question sought to be raised by
such application as to the right of the party to
intervene upon TIE complaint--all the parties
| in interest being b,fore 1t and heard-the same
as though the question was properly raised af-
| ter com plant flei upon motion to strike
| the same from the files as being
wholly unauthorized under the statute, and
of determining il accordingly. Thus con-
| sidered and treated, the order, which is the
subject of this APPEAL, is not an appealable one
| under sub. 6, sec. 3, CHI. sc, general statutes,
| because it is not an order made in special
| proceeding or upon summary application In
a civil action after judgment. The term
special proceeding, used in this clause OF
the statute, has no reference to any judicial
proceeding or decision had or made in and
I tbe Of civil action
| judgement. The order in question was made
in the civil action already commenced and
| pending, and if aIpealah4e at all it must be
| because Of other pr' vision Of the statute.
1t is not covered by the fifth subdivisi N OF the
same section, as IS suggested by appellant
ton nor prevented rendition of judgment
therein. Does it fall within the the
| third subdivision as an order involving the
merits of the action or any part thereof
if the order in its effect passes upon or deter
mines any positive legal right, or interest Of
the appellant in litigation, in the action which
by the statute he is authorized to interpose
therein for adjudication as an intervenor, or ii
it deprives him of any opportunity of inter
vening in respect 10 any such right or Interest
or the purpose of obtaining
id on .a thereon tn that IN e seot
to involve in part The merits Of such action. L
however. its only effect is to prevent hin, from
intervening as a party in the action for the as
;ertion of rights wholly irrelevant and foreigr
o any matter involved in the litigation in con
;roversy therein. it can be hardly said to atfec
in any way any part of the merits OF said action
The character of the order in question therefor
IN this respect depends upon the construction
If the statute under which the right to inter
yene is asserted and whether the facts disclosed
in the complaint OF intervention, considered il
reference to the matters in litigation In tn
action between the original partie
thereto bring the case with its provisions. Th
statute provides that ANY person who has al
interest in the matter in litigation. in the sue
cess of either of the parties to the action, O
against either or both, may become party t
! any action or proceeding between other persons
either by joining the plaintiff III claiming wha
| is sought by the complaint or by uniting wit
the defendant in resisting the claim of tn
plaintiff or by demanding anything adversel
| 10 both the plaintiff and defendant, or elthe
Of them, either before or after issue has bee
joined IN the cause and before the trial CON
mences. The court shall determine upo
the issues ''made by the intervention at til
same time that the issue in the main action
lecided aud the intervenor has no right to d,
lay; and if the claim of the intervenor is nc
sustained he shall pay all the costs of the il
tervention. The intervention shall be by con
plant which must set forth the facts on whc
che Intervention rests, and all the pleading
butIeiu Silssll NC 5USCIllClA Wy UuC PliHC
pies and rules as obtain in other pleadings
<. Chapter so general laws 1876
The doctrine of Intervention as embodied
the statute evidently originated in TIL
country in the civil code Of Louisiar
whence it was subsequently take
and incorporated into the jurisprudence {
the States of California and Iowa, who's
S statutes upon this subject have been copied /
us IN almost their identical language. FL
question as to the meaning of the provisiC
which in terms allows 'any person who has 8
j interest in the matter in litigation in the su
e cess of either of the parties to the action
r against either or both, &C., to become an i
tervening party, has been before the courts
those States at different tim
I and has uniformly received OF
I and the same answer. In Gasgrut, ct a
: vs.. johnson ct al, Louis, 431, a leading ca
{ upon the subject, the suit was brought upon
! bill of exchange drawn by the defendants. b
the plaintiffs petition contained such a misd
scription of the draft as was fatal to a reco
cry, unless it was allowed to be amended. Su
IS sequent attaching creditors claimed the rig
II to intervene for the purpose of Directing to t
IT power of the court to grant the amendment
the ground that they had an interest in defes
o cause the debtor defendants property was
e sufficient in amount to satisfy the clair
! of all their creditors. The court deemed The
! right to intervene for that purpose on t
ground that such their interest was not :.
D. interest in the matter in litigation within t
meaning of the statute Speaking of an
J. terest of that kind it says: This we suppe
. must be direct interest by which the interve
L ing party is to obtain immediate gain or s.
l. fer loss by the Judgment which may be re
n dered between the original parties; otherw
.. the strange anomaly would be introduced il
our jurisprudence of suffering au accumu
&c ton of suits in all instances where doubts mig
he entertained Or enter i.tt, the imarn nat
Ia of subsequent plaintiffs that
- defendant against whom previous action Y
q made, prosecution might not have suffice
property to discharge all his debts, for, as
e first Judgment obtained saight give pref
G. ence to the person obtaining it, all subsequt