NE Code § 25-328 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-328 - Intervention; right; procedure.

25-328.  Intervention; right; procedure.Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to an action, or against both, in any action pending or to be brought in any of the courts of the State of Nebraska, may become a party to an action between any other persons or corporations, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendants in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the action, and before the trial commences.Source   Laws 1887, c. 100, § 2, p. 655;   R.S.1913, § 7609;   C.S.1922, § 8552;   C.S.1929, § 20-328;   R.S.1943, § 25-328;  Laws 2002, LB 876, § 9. Annotations  1. Right of intervention 2. Procedure 1. Right of intervention Under this section, an intervenor must have a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment that may be rendered in the action. In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011). The interest required as a prerequisite to intervention is a direct and legal interest in the controversy, which is an interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action. Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (2007). In order to intervene under this section, the intervenor must have a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action. Spear T Ranch v. Knaub, 271 Neb. 578, 713 N.W.2d 489 (2006). Under equity principles, laches, or unreasonable delay, is a proper reason to deny intervention. Merz v. Seeba, 271 Neb. 117, 710 N.W.2d 91 (2006). A direct and legal interest is an interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action. Douglas Cty. Sch. Dist. 0001 v. Johanns, 269 Neb. 664, 694 N.W.2d 668 (2005). As a prerequisite to intervention under this section, the intervenor must have a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment that may be rendered in the action. A noncustodial parent whose parental rights have not been terminated and who has been involved in his or her minor child's life has a direct and legal interest in such minor child's name-change proceeding. In re Change of Name of Davenport, 263 Neb. 614, 641 N.W.2d 379 (2002). A foster parent does not have an interest in the placement of an adjudicated child sufficient to warrant intervention in juvenile proceedings as a matter of right, but is entitled to notice and an opportunity to participate in all court reviews pertaining to a child in foster care placement. In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002). This section requires only that an intervenor have a direct and legal interest in the matter in litigation, and no exception is made for a party already adequately represented. Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001). Mere possibility of benefit upon liquidation of a charity held not sufficient interest to support intervention as a matter of right. Colman v. Colman Foundation, Inc., 199 Neb. 263, 258 N.W.2d 128 (1977). No third party has right to intervene in a criminal case and appeal of news media from restrictive order is dismissed. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975). Anyone having an interest in the result of pending litigation may intervene as a matter of right. Geer-Melkus Constr. Co., Inc. v. Hall County Museum Board, 186 Neb. 615, 185 N.W.2d 671 (1971). Uninsured motorist's insurance carrier generally has right to intervene in litigation between insured and uninsured tort-feasor. Heisner v. Jones, 184 Neb. 602, 169 N.W.2d 606 (1969). A party having an interest in a suit to establish a trust may intervene before trial begins. Workman v. Workman, 174 Neb. 471, 118 N.W.2d 764 (1962). To be filed as a matter of right, a petition in intervention must be filed before trial. Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65 (1959). Taxpayers are not qualified to intervene in matters of public interest prosecuted or defended in good faith for a governmental subdivision by its proper officials. Noble v. City of Lincoln, 158 Neb. 457, 63 N.W.2d 475 (1954). Landowners damaged by construction of ditch had right to intervene. Lackaff v. Bogue, 158 Neb. 174, 62 N.W.2d 889 (1954). One having an interest in the result of pending litigation may intervene as a matter of right. Gilbert v. First Nat. Bank of Minatare, 154 Neb. 404, 48 N.W.2d 401 (1951). Ordinarily there is no right of intervention by third parties in an action for divorce. Harris v. Harris, 151 Neb. 191, 36 N.W.2d 849 (1949). To authorize intervention, interest in litigation must be direct and immediate. Best & Co., Inc. v. City of Omaha, 149 Neb. 868, 33 N.W.2d 150 (1948). A senior appropriator of water has an absolute right to intervene to protect his interest in injunction suit by junior appropriator against officials charged with administration of irrigation laws. Platte Valley Irr. Dist. v. Tilley, 142 Neb. 122, 5 N.W.2d 252 (1942). One having an interest in the result of pending litigation may intervene as a matter of right. Allen v. City of Omaha, 136 Neb. 620, 286 N.W. 916 (1939). Creditors have a right to intervene in suit to recover stockholder's liability. Hoffman v. Geiger, 134 Neb. 643, 279 N.W. 350 (1938). Party seeking to intervene must have such a direct and immediate interest in matter in litigation that he will either lose or gain by direct operation and legal effect of the judgment which may be rendered in the action. Cornhusker Electric Co. v. City of Fairbury, 131 Neb. 888, 270 N.W. 482 (1936). To authorize party to intervene, he must have an interest of such a direct and immediate character that he will either gain or lose by the direct legal operation of and effect of the judgment. City of Omaha v. Douglas County, 125 Neb. 640, 251 N.W. 262 (1933). Mere fact that party claims to be owner of attached property does not give him right to intervene in the attachment and thus have question of his ownership determined in attachment suit. Geis v. Geis, 125 Neb. 394, 250 N.W. 252 (1933). Taxpayer's suit to have deposit of school district declared preferred claim, where classified by bank receiver as general claim only, and where district officers neglect or refuse to prosecute claim further, was proper hereunder. State ex rel. Sorensen v. American Bank of Mitchell, 121 Neb. 862, 238 N.W. 753 (1931). State may intervene to resist demands of those claiming estate of decedent. In re O'Connor's Estate, 117 Neb. 636, 222 N.W. 57 (1928). Section should be liberally construed; but where intervener's pleading failed to show any interest in controversy, he has no standing; mere assertion is not sufficient. Parker v. City of Grand Island, 115 Neb. 892, 215 N.W. 127 (1927). Where interested person is not made party, ordinarily he may intervene as matter of right. Webb v. Patterson, 114 Neb. 346, 207 N.W. 522 (1926). Intervention under this section is matter of right, but equity courts may also allow intervention after trial has begun. Engdahl v. Laverty, 110 Neb. 672, 194 N.W. 862 (1923). Any person claiming interest may intervene, as matter of right, in probate proceedings. In re Estate of Keller, 101 Neb. 115, 162 N.W. 511 (1917). Parties not owners of real estate in proposed drainage district are not entitled to intervene in proceedings. Latham v. Chicago, B. & Q. R. Co., 100 Neb. 173, 158 N.W. 923 (1916). All interested in estate are parties to probate proceedings whether named or not. In re Estate of Sweeney, 94 Neb. 834, 144 N.W. 902 (1913). Mortgagor who conveyed by warranty deed may intervene to plead usury in action to foreclose. Pitman v. Ireland, 64 Neb. 675, 90 N.W. 540 (1902). The shareholders may intervene in pending suits for the purpose of protecting their own interests, where the officers of a corporation fail and refuse to protect and conserve the corporate property. State ex rel. Bugbee v. Holmes, 60 Neb. 39, 82 N.W. 109 (1900). Creditor may not ordinarily intervene in action by receivers against stockholders of bank. Brown v. Brink, 57 Neb. 606, 78 N.W. 280 (1899). Receiver of corporation may intervene to defend action. Andrews v. Steele City Bank, 57 Neb. 173, 77 N.W. 342 (1898). Subsequent attaching creditor may intervene to have priority of levies decided. Deere, Wells & Co. v. Eagle Mfg. Co., 49 Neb. 385, 68 N.W. 504 (1896). A mere contingent liability to answer over to the defendant, without any privity with the plaintiff, is not sufficient interest in the controversy to entitle a third person to intervene. Omaha Southern Ry. Co. v. Beeson, 36 Neb. 361, 54 N.W. 557 (1893). Assignee chosen by creditors should intervene where assigned property is attached. Commercial Nat. Bank v. Nebraska State Bank, 33 Neb. 292, 50 N.W. 157 (1891). Assignee of note may intervene in replevin of goods by mortgagee. Harman v. Barhydt, 20 Neb. 625, 31 N.W. 488 (1886). The interest required as a prerequisite to intervention under this section is a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action. In re Interest of Jamie P., 12 Neb. App. 261, 670 N.W.2d 814 (2003). Although a party may not intervene after judgment as a matter of right, a court of equity may allow intervention after judgment. However, intervention should not be allowed after judgment where the party seeking to intervene had an opportunity to intervene at an earlier time, yet delayed in doing so. Association of Commonwealth Claimants v. Hake, 2 Neb. App. 123, 507 N.W.2d 665 (1993). 2. Procedure A parent in a juvenile action does not need to follow the intervention procedures set forth in this section and sections 25-329 and 25-330 in order to participate in juvenile proceedings involving the parent's child. In re Interest of Sloane O., 291 Neb. 892, 870 N.W.2d 110 (2015). Intervention after judgment cannot be obtained as a matter of right under this section. Leave to intervene after the entry of a final decree is not allowable as a matter of right and should seldom be granted, but equity sometimes requires a departure from the general rule; however, the burden of persuasion in such a case is a heavy one. Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012). The plain language of this section makes clear that intervention as a matter of right is allowed only before trial begins. Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012). A petition in intervention under this section must be filed before the trial. American Nat. Bank v. Medved, 281 Neb. 799, 801 N.W.2d 230 (2011). The existence of a statutory right of intervention before trial does not prevent a court of equity from allowing intervention after judgment. Meister v. Meister, 274 Neb. 705, 742 N.W.2d 746 (2007). A party cannot appeal from an order or judgment which was made with his consent, directly or through his counsel, or upon that party's application. Reindertson v. Long, 198 Neb. 397, 253 N.W.2d 40 (1977). Right to intervene may be exercised at any time before trial commences. Pribil v. French, 179 Neb. 602, 139 N.W.2d 356 (1966). A petition in intervention may be filed as a matter of right before trial. Lincoln Bonding & Ins. Co. v. Barrett, 179 Neb. 367, 138 N.W.2d 462 (1965). Existence of statutory right of intervention before trial does not prevent a court of equity from allowing intervention after judgment. State ex rel. City of Grand Island v. Tillman, 174 Neb. 23, 115 N.W.2d 796 (1962). Striking of petition of intervention of landlord in suit by tenant against elevator company was erroneous. Anest v. Chester B. Brown Co., 169 Neb. 330, 99 N.W.2d 615 (1959). Petition in intervention must state such facts as, if conceded to be true, will entitle applicant to some relief. Ash v. City of Omaha, 152 Neb. 393, 41 N.W.2d 386 (1950). The right of a party to intervene in an action is absolute, provided he exhibits a pleading containing allegations which demonstrate a right in the subject matter being litigated. Wightman v. City of Wayne, 146 Neb. 944, 22 N.W.2d 294 (1946). Party may intervene in tax foreclosure proceedings and make increased bid before confirmation of judicial sale. County of Nance v. Thomas, 146 Neb. 640, 20 N.W.2d 925 (1945). An intervener who is not an indispensable party cannot change the position of the original parties or change the nature and form of the action or the issues presented therein. State ex rel. Nelson v. Butler, 145 Neb. 638, 17 N.W.2d 683 (1945). Trial court may, in its discretion, permit intervention after commencement of trial. Conkey v. Knudsen, 143 Neb. 5, 8 N.W.2d 538 (1943). An intervener must take the suit as he finds it, is bound by previous proceedings in the case, and cannot complain of the form of the action or of informalities or defects in the proceedings between the original parties. Drainage Dist. No. 1 of Lincoln County v. Kirkpatrick-Pettis Co., 140 Neb. 530, 300 N.W. 582 (1941). The courts recognize two methods by which intervention may be accomplished; one statutory, the other as a matter of equitable discretion where necessary to administer complete relief between all parties. Department of Banking v. Stenger, 132 Neb. 576, 272 N.W. 403 (1937). Court of equity may, in exercise of its discretion and furtherance of justice, allow intervention after judgment to protect inherent rights in the foreclosure of real estate mortgage. Kitchen Bros. Hotel Co. v. Omaha Safe Deposit Co., 126 Neb. 744, 254 N.W. 507 (1934). Leave to intervene should be denied where proposed intervener has no interest in subject matter different from any other taxpayer and where there is no charge that State Treasurer is not defending action in good faith. State ex rel. Randall v. Hall, 125 Neb. 236, 249 N.W. 756 (1933). To intervene as matter of right under this section, petition must be filed before trial. State v. Farmers State Bank of Decatur, 103 Neb. 194, 170 N.W. 901 (1919). Petition of intervener, who has become party to action, cannot be dismissed until determination on merits. Montgomery v. Dresher, 97 Neb. 112, 149 N.W. 314 (1914). Party may intervene after void judgment is entered; time for appeal dates from dismissal of petition of intervention. Shold v. Van Treeck, 82 Neb. 99, 117 N.W. 113 (1908). Intervener's right must be affected by direct legal operation of judgment; he may not contest grounds of attachment. Danker v. Jacobs, 79 Neb. 435, 112 N.W. 579 (1907). Section does not prevent court ordering in necessary parties. Brown v. Brown, 71 Neb. 200, 98 N.W. 718 (1904). Party may intervene in election contest before dismissal. Moore v. Waddington, 69 Neb. 615, 96 N.W. 279 (1903). Attorney may intervene in proceedings to revive judgment and enforce lien; petition is notice of lien. Greek v. McDaniel, 68 Neb. 569, 94 N.W. 518 (1903). May become party to suit without leave of court. Spalding v. Murphy, 63 Neb. 401, 88 N.W. 489 (1901). Person claiming title to subject matter may intervene any time before trial. McConniff v. Van Dusen, 57 Neb. 49, 77 N.W. 348 (1898). Objection to intervention of stranger may be waived. Chadron Banking Co. v. Mahoney, 43 Neb. 214, 61 N.W. 594 (1895). Alleged father's petition to intervene in child dependency proceeding was timely filed; the petition was filed less than 1 month after adjudication, prior to the first disposition and placement hearing. In re Interest of Sarah H., 21 Neb. App. 441, 838 N.W.2d 389 (2013). Intervention after judgment cannot be obtained as a matter of right. Miller v. Commercial Contractors Equip., 14 Neb. App. 606, 711 N.W.2d 893 (2006). Where application to intervene is not filed before trial, proposed interveners are not entitled thereto as matter of right. Draver v. Greenshields & Everest Co., 29 F.2d 552 (8th Cir. 1928). Bankruptcy trustee is entitled to sue in federal court to set aside foreclosure on ground of fraud, where adjudication in bankruptcy came too late to permit intervention in foreclosure suit. Stefan v. Raabe, 1 F.2d 129 (8th Cir. 1924).