23 A. 761 | R.I. | 1891
In this case an attaching creditor claims the right to intervene and to be heard in respect of the judgment, if any, to be entered therein, in order to protect his rights as a subsequent attaching creditor. No reason for intervention is set forth, no fraud, collusion, or illegality is alleged, but the petition is based simply upon a claim of right as a subsequent attaching creditor. Assuming, however, that some such ground might be shown in proof, the underlying question is, whether the petitioner has the right to intervene at all.
Special provision is made in our statutes for the intervention of persons interested in the subject-matter but not parties to a suit, in two cases; viz., in proceedings in equity, Pub. Stat. R.I. cap. 192, § 15, and in cases of assignments of property attached on trustee process, Pub. Laws R.I. cap. 433, § 1, of May 2, 1884. The present application goes beyond these statutory provisions and asks for the intervention of a subsequent attaching creditor in an action at law. The passage of these laws raises some presumption that without them there could be no intervention; and if not in equity, nor in the case of a claim of full ownership of the property attached, then much less in a case where the party seeking to intervene has only an attachment lien. The application is a novel one in the practice of this State, and in the absence of statutory authority cannot be supported unless it is a common law right. The petitioner contends that as a subsequent attaching creditor may defeat a prior attachment at common law, by showing that the judgment on which it rests was collusively and fraudulently obtained, he ought to be allowed to intervene to prevent a judgment, for any cause for which he could afterwards *569 avoid it, in order to prevent circuity of action. We do not see that the reason upon which this claim is rested is a sound one. The trial of the question of fraud would be the same in the original as in a subsequent action, with the added question whether the petitioner himself had a valid claim, and so at least three things would come up for determination, and each an issue by itself, viz., the debt sued on, the fraud of the parties, and the petitioner's debt. The number of actions might appear to be reduced, but the circuity would remain, with increased inconvenience to all parties. The question then comes whether the petitioner is entitled to intervene, under a common law right.
In New Hampshire it is said by the court to be familiar practice, in that State, to permit such intervention, Pike v.Pike,
Our conclusion is that the motion to intervene in the present action at law must be denied.
Petition dismissed.