57 P.2d 325 | Idaho | 1936
Lead Opinion
This is an appeal from a judgment dismissing appellant's complaint in intervention filed in the trial court. The judgment of dismissal was predicated on an *557
order sustaining the demurrer to the complaint on the ground that appellant's claim was barred by the statute of limitations (by both secs.
It seems to have been admitted by all parties that the other undivided half interest in these hogs belonged to one Sylvester Hill. Thereafter on November 7th the attorneys for the respective parties (except the appellant) entered into the following stipulation:
"It is hereby stipulated by and between R.A. Russel attorney for the plaintiff herein and Stone Jackson, attorneys for the defendants herein, that the hogs attached in said action in which Sylvester Hill is the owner of an undivided one-half interest, are to be sold by the said Sylvester Hill at such time or times as he believes said hogs to be fit for market, and that one-half of the amount received from the sale of said hogs is to be turned over to the Clerk of the District court to be held by her until a final decision of said case, when the money is to be turned over to the party the court decides is entitled to the same.
"It is hereby understood that nothing in this stipulation is to interfere with any of the rights of Kenneth Ferguson who claims a third party interest in said property.
"Dated this 7th day of November, 1928."
Immediately following the making of the foregoing stipulation the hogs were sold by Hill, and one-half of the proceeds, amounting to $447.85, was deposited with the clerk of the court in accordance with the terms of the stipulation. The case alternately slumbered and revived with intermittent *558 motions and demurrers until October 27, 1930, at which time the plaintiff procured an order permitting him to file a second amended complaint against H.K. Ferguson and Maud M. Ferguson and to drop the defendant, Clifford Ferguson, from the case. So far as the record shows, Kenneth Ferguson never prosecuted any action against the sheriff in replevin of this property nor for conversion of the property. It is clear, however, that he rather elected to pursue the funds realized from the sale of the property under the stipulation entered into as above set out. Accordingly on December 6, 1932, while the main action was still pending appellant presented and was permitted to file his complaint in intervention.
Now, for the purpose of determining whether or not appellant's complaint in intervention was sufficient to entitle him to be heard, we will examine the allegations of the petition. They are as follows:
Attached to the complaint is a copy of the partnership agreement, a copy of the inventory of property covered by the partnership agreement, assignment of Clifford Ferguson's interest to intervener and acceptance by Hill. The intervener prays to be adjudged the owner of the fund and that the court order and direct that it be turned over to him, and for general relief. For the purposes of this case we must accept the allegations of appellant's complaint or petition as true.
The complaint discloses that this is not an action in replevin against the sheriff who seized the property under the writ of attachment; neither is it an action for conversion, nor is it an action on contract. Intervener had the right to pursue his property by writ of replevin against the sheriff or to sue him for conversion. It appears from the complaint (paragraph VI) that shortly after the attachment and the receipt of an indemnity bond by the sheriff the trial court made an order (presumably under sec.
"The authorities are too numerous to be mentioned holding that an intervention so made is within time. The ownership of the money in dispute clearly gave the intervener a right to appear in the action, and the trial court properly so held." (Van Loben Sels v. Producers' Fruit Co.,
The money was paid into court some time in November, 1928. Plaintiff in intervention has chosen to claim the fund realized from the sale of this property and to avail himself of the remedy of having the court determine who is the rightful owner thereof and order the money turned over in accordance with the previous order of the court and stipulation of *562 the respective counsel. When he filed his application requesting the court to carry out the terms of its previous order and the stipulation of counsel, he was met with the reply that his claim was barred by the statute of limitations, although the same case had been pending all these years and the property out of which the fund was realized was seized on process issued in the same case and the money realized has been held in custody of the court during the pendency of the action.
The first question arising is: Does the statute of limitations run in such a case? If it does run, when did it start and in favor of whom does it run and who may plead it? The plaintiff Anderson has no title to this money. He merely claims an attachment lien and hopes to have the money subjected to execution on any judgment he may obtain. The defendants against whom he has procured judgment make no claim to the property. So we are here confronted with the anomaly of a plaintiff who has had an attachment suit pending in court for more than four years pleading the statute of limitations against the one who claims to be the owner of the money realized under order of court from a sale of the attached property. The sale of the property under order of court released the property sold from the attachment and the fund realized from the sale was paid into court and could only be reached or disbursed by an order of the court made in that case.
There is no provision of law by which lapse of time will either bar a claimant from asserting his right to such fund or prevent the court hearing his application and directing the money to be paid to the one rightly entitled thereto. (Hafker v. Henry,
The running of the statute of limitations does not pay the debt or satisfy the obligation. It is a mere privilege *563
personal only to the party liable and is only a statute of repose. (Chemung Min. Co. v. Hanley,
Execution does not run against money in custody of the court. The court has inherent power to control the fund in the hands of its clerk and to direct him as to the distribution thereof in the discharge of his official duties. (Hornish v. RingenStove Co.,
"An order for payment of a fund out of court may be made on motion in the cause in which the fund was deposited, if there is no dispute as to who is entitled to the fund; or the person claiming the fund, or an interest therein, although not a party to the original cause, may be permitted to intervene and assert his claim.
"It has been generally held that any disposition of the fund must be in the proceedings in which it was deposited, and thatan independent suit against the official custodian or thedepositary of the fund will not lie." (Italics ours.) (18 C.J., pp. 778, 779, sec. 52.)
Had intervener filed his petition immediately upon the deposit of the fund with the clerk, under the intervention statute he would not have had a right to a trial until the trial of the main case between plaintiff and defendants. Intervener takes the case as he finds it. (2 Bancroft's Code Prac. Remedies, sec. 781, p. 1147; State Bank of New Salem v.Schultze (McCormick, Intervener),
It has been held by this court that a counterclaim or cross-complaint may be filed for damages caused on account of the wrongful issuance or levy of an attachment in the same case. According, however, to the contention made herein, such a cause of action for damages, even though arising out of the same case and after its commencement, would be barred unless "the counterclaim or cross-complaint" alleging such damages were filed within the period of the statute of limitations, although the case had been pending for a period exceeding the statute of limitations as in this case. (Willman v. Friedman,
There is another thing that appears from the complaint in intervention that is incompatible with the plea of the bar of the statute of limitations, and it is this: According to the complaint and exhibits attached, these hogs originally belonged to Sylvester Hill and Clifford Ferguson as copartners. They were tenants in common in the property, each owning a one-half interest therein. On October 24, 1928, Clifford Ferguson, being largely indebted to intervener and in payment thereof, sold and assigned his interest in the partnership to the intervener, and the partner Sylvester Hill consented to, approved and ratified the assignment. When Anderson commenced action on October 24th he made Clifford Ferguson a defendant and the attachment issued against him as well as against the other defendants. Three years later and after rulings on various demurrers, on October 27, 1930, the attorneys stipulated that a second amendedcomplaint might be filed, omitting therefrom Clifford Ferguson. The stipulation is as follows:
"It is stipulated and agreed by and between the parties hereto that the above entitled action, in so far as the same affects the defendant, Clifford Ferguson, may be dismissed without prejudice, and that plaintiff may file an amended complaint against the above named defendants, H.K. Ferguson and Maud M. Ferguson."
This second amended complaint omitted the cause of action that had previously been charged against Clifford Ferguson on a separate note executed by him alone. Incidentally, it let out the only defendant who had ever owned or asserted *565 any interest in the attached property. Intervener is the successor in interest of Clifford Ferguson and derived his title to the hogs through him. Clifford Ferguson was "dismissed" from the action "without prejudice" and the stipulation to that effect was signed by his attorney and also by plaintiff's attorney.
It appears from the record that after the demurrer to intervener's complaint was sustained and he was out of court, the case against H.K. Ferguson and Maud Ferguson was tried December 8, 1932, and judgment was entered January 6, 1933, in favor of the plaintiff and against the defendants last named in the sum of $464.18. On the same date and apparently at the same time the court entered the following order:
"It appearing to the court that the clerk of the above entitled court is holding a sum of money in the above entitled action which is claimed by the above named intervener, which claim has not as yet been passed upon by the court;
"Now, therefore, it is ordered, that no execution shall issue upon the judgment heretofore entered in favor of plaintiff and against the defendant, H.K. Ferguson, in the sum of $464.18 and costs, against the above mentioned moneys held by the clerk and claimed by Kenneth Ferguson, until the further order of this court.
"Dated January 6th, 1933."
So it will be seen that the money is still being held by the clerk of the court and that no order has ever been entered declaring the title or ownership therein or to whom the money should be paid. Nevertheless, intervener, the only person claiming title to the property, is turned out of court.
Intervention is not a common-law remedy. It has been said that the "practice of allowing intervention" rests "on a combination of the principles of the ecclesiastical and civil law" and that it should be decided "under the principles of equity practice." (Potlatch Lumber Co. v. Runkel,
It has been contended that the sole question confronting the court is whether or not intervener's complaint in intervention was timely made. It seems that the simple and *566
logical answer to this inquiry is that it was made "before the trial" as provided by the statute (sec.
On the foregoing statement of fact and the law as we see it, it seems clear that the court should have overruled the demurrer to the complaint in intervention and have heard the evidence of the respective parties as to the ownership and title to the fund being held in the custody of the court. If it belonged to intervener the court should have ordered it turned over to him. If it belonged to H.K. Ferguson and Maud Ferguson, the defendants, or either of them, then the court should have entered an order authorizing it to be applied toward the payment of the judgment in favor of the plaintiff Anderson.
It is clear that plaintiff has no attachment lien against Clifford Ferguson and that the latter is no longer in the case. The only claimants to the fund are plaintiff as an attachingcreditor of H.K. Ferguson and Maud Ferguson (who make no claim to the property) and the intervener who claims to be the absolute owner thereof.
The judgment is reversed and the cause is remanded with direction to the trial court to overrule the demurrer and reinstate appellant's complaint in intervention and take further proceedings in conformity with the views herein expressed. Costs awarded in favor of appellant.
Budge and Holden, JJ., concur.
Dissenting Opinion
The sole question confronting this court is whether or not intervener's complaint in intervention was timely made.
I. C. A., section
"Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding *567 any thing adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court, and served upon the attorneys of the parties who have appeared, who may answer or demur to the same within twenty days after such service as if it were an original complaint; and the court may order summons to be issued and served upon the parties to the action or proceeding who have not appeared." (Italics herein.)
Intervener has not attempted to show any community of interest or privity of estate with the respondent's cause of action because his alleged title came through Clifford Ferguson, who is no longer a party to the attachment suit, but has stated a complete and distinct cause of action on his own behalf which arose from the attachment of his alleged undivided one-half interest in sixty-two hogs. (Havird v. Lung,
More than four years have elapsed from both the time of attachment and the time of the third party demand. The statute of limitations for claim and delivery is three years. I. C. A., sec.
". . . . is in no respect interested in the question as to whether the defendant is indebted to the plaintiff or not. The interest of the intervenor here is to show that neither *568 plaintiff nor defendant has any interest in this property. In fact, she would not be permitted to interpose a defense personal to the defendant and in the result of which she could have no interest one way or the other."
The only conclusion deducible from this statement is that the court considered the intervener's cause of action was entirely separate and apart from the main controversy and that there is not such community of interest between the intervener and the plaintiff or defendant that the institution of the main cause of action tolls the statute as to the third party's claim. While the authorities cited by appellant hold that an intervener coming in under a statute similar to our own may intervene "before trial," none of them pass directly upon the point involved herein, that is, where the bar of the statute has been raised against an intervener who has not joined the cause of either the plaintiff or the defendant, but has elected to stand on an entirely separate cause of action. Since appellant has not successfully shown by what exception to the statute of limitations he is entitled to recover, we must then construe his rights under the general principles of practice governing new parties. An amendment bringing in new parties does not affect the time of bringing the action as to the plaintiff and the defendant, but the action is commenced as to the new party when he is made a party, except where the addition is as a joint plaintiff, or assignee of the plaintiff who is a real party in interest. (1 C.J. 1160, sec. 414.) Appellant does not qualify under this exception. In the case ofDenton v. Detweiler,
The stipulation does not avail appellant because he was not a party thereto. (60 C.J. 68, sec. 50; Farmers' etc. Sav. Bankv. Hudson,
The third party claim of appellant made on the sheriff is not a pleading (McGaffey Canning Co. v. Bank of America, (Cal.App.)
Intervener contends that Anderson could not question intervener's right to the hogs because he acquired by the attachment only the rights H.K. Ferguson had, and that H.K. Ferguson had no rights to or interest in the hogs. That, however, was the precise issue to be determined and Anderson by reason of his attachment, the third party claim on the property which cast a cloud on the title to the property, and because of at least Anderson's contingent liability in connection with the bond given the sheriff to indemnify him for damages arising from holding the property in his possession after appellant's demand, had sufficient standing in the litigation to raise the bar of the statute.
In Mendini v. Milner,
"The statute of limitations is general, is to be liberally construed and must be applied in all cases where an exception is not specifically made. (Vandall v. Teague,
I. C. A., sec.
The statutes have given remedies for just such circumstances as intervener was placed in here, and in order to secure relief he must pursue his remedies with the same diligence that he would if there were not other parties litigant; or if there is a delay such as there was in the case at bar, it must be justified by showing that the party seeking redress comes within an exception to the running of the statute of limitations. After a careful examination of the authorities cited by appellant we cannot find where the intervener has brought himself within an exemption of the statute, and we must find that intervener has slept on his right too long, and now has lost his remedy.
It appearing on the face of the complaint in intervention that the cause of action was barred by the statute of limitations, supra, the complaint was properly attacked by demurrer and the demurrer properly sustained in the court below.
The judgment should be affirmed.
Morgan, J., concurs in this dissent.