61 Cal. 555 | Cal. | 1882
Petitioner for the writ of prohibition claims that Section 387 of the Code of Civil Procedure confers a special and limited jurisdiction on the Superior Court, which can be exercised only in case the complaint in intervention is both filed and served “ before the trial.”
In the case before us the order permitting intervenor to become a party was made, and the written intervention filed, before the trial. But before service of the complaint of intervenor, plaintiff and defendant proceeded to try the issues between them, which was doubtless irregular unless the attempt to intervene was void.
Without admitting that the jurisdiction of the Superior Court with respect to the matter of intervention is, in the strict sense, statutory and limited, even if this much should be admitted, the Court below acquired jurisdiction by the order permitting, the intervenor to become a party. A person may intervene before the trial. (C. C. P., 387.) An intervention “ takes place when the order is made permitting such person to become a party.” (Id.) The complaint in intervention is filed when “ leave of the Court” is granted, which necessarily precedes its service.
Of course when the complaint in intervention is filed (by leave of the Court) a trial before its service on the party against whom the intervenor asserts an adverse claim is premature; but an erroneous procedure in that regard does not involve any question of jurisdiction.
Demurrer sustained.
