290 P. 484 | Cal. Ct. App. | 1930
The defendant Cochran in his official capacity as constable sold certain hay under an attachment, and the plaintiff brought this action against him, claiming to be the owner of said hay and seeking damages for its wrongful conversion. Cochran filed an answer, denying all of the allegations of the complaint. Thereafter he served and filed the following notice:
"You will please take notice that I have been served with a summons and copy of the complaint in the above-entitled action; which said summons and complaint I have heretofore transmitted to you. This action is based on my attachment and subsequent sale under execution of approximately twenty-one tons of baled alfalfa hay which you claimed was the property of Dan Orr and Willie Orr, and for the doing of which you gave me an undertaking *527 in indemnity. I hereby permit you to conduct the defense of the above-entitled action.
"LESTER COCHRAN."
Thereafter, the court made the following order:
"Done this 5th day of October, 1928.
"V.N. THOMPSON, "Judge of above entitled court."
Thereafter, the said Edgar Ross filed the following:
"That he is the real party at interest in the above-entitled action for the reason that the acts complained of were done at his command and in compliance with written instructions to the defendant constable who only performed the duty of his office therein, and for the further reason that he gave to the said defendant constable an undertaking in writing by the terms of which he will become obligated to pay any judgment that might be recovered by the plaintiff herein in event that he should recover judgment in this action.
"Wherefore, defendant in intervention prays that plaintiff take nothing by reason of this action and that defendant and defendant in intervention recover their costs.
"J. EDGAR ROSS, "Defendant in Intervention."
When the action came on for trial, neither the defendant Cochran nor Ross was represented by counsel. At the outset of the trial Ross asked to see an instrument being offered in evidence by plaintiff's attorney, and objected to a question asked by this attorney. Whereupon, plaintiff's counsel stated: "At this time I make the objection that Mr. Ross has no right to appear in this action except as to any issues raised by his complaint in intervention." The court *528 sustained this objection. Thereupon, Ross asked the court to clearly define his rights in the action. After some argument in reference to his rights, the following occurred:
"The Court: Then it would not be proper for you to act as the attorney and make objections and conduct or attempt to conduct the defense for the defendant himself. The allegations of the complaint are not sufficient to permit you to go to the extent of proving, or attempting to prove, anything other than you have set out in your pleadings, than what is set out in the complaint in intervention.
"Mr. Ross: Then, as I understand the ruling of the Court, in so far as the complaint in intervention goes, that being admitted, I have no right to join the defendant in the conduct of this case.
"The Court: Yes, sir.
"Mr. Ross: Very well, Your Honor, I take an exception to the ruling if the Court please."
Ross having been thus excluded from participation in the defense, the trial proceeded with Cochran attempting to conduct the defense. The court found for the plaintiff on the issues raised by the complaint and answer, and then found as follows: "That said defendant, Leslie L. Cochran, as said constable, took said property pursuant to the instructions received from said intervener, J. Edgar Ross, and to indemnify said defendant in that respect, the said intervener, J. Edgar Ross, executed and delivered to said defendant an undertaking in writing by the terms of which he obligated himself to pay any judgment that might be recovered by the plaintiff in this action; that seasonable notice of the institution of this action was given said intervener, J. Edgar Ross, by said defendant, Leslie L. Cochran, and permission was given said J. Edgar Ross by said Leslie L. Cochran to conduct his defense thereof." Judgment went for the plaintiff and upon motion of Cochran the same judgment was also rendered against Ross. From this judgment both have appealed.
The main ground of the appeal is the claim that the court was in error in refusing to permit Ross to conduct the defense. Appellants argue that Ross was by this ruling denied his day in court, and that Cochran, being lulled into a false sense of security through the expectation that Ross *529
would conduct the defense, was brought to the trial unprepared to meet the issues. The respondent insists the ruling of the court was correct, citing authorities to the effect that pleadings in intervention must be complete within themselves, and since the so-called "Complaint in Intervention" did not deny any of the allegations of the complaint, or state any new matter constituting a defense, appellant Ross was properly denied permission to have anything to do with the real issues of the case. If the rights of appellant Ross depended only upon the so-called complaint in intervention, the ruling of the court was correct, but we do not think his rights were so limited. Ross had received notice that the defendant officer would permit him to conduct the defense of the action, as provided for by section
[3] Assuming that Ross could have intervened in this action, the fact remains that he did not do so. While he filed what is denominated a "Complaint in Intervention," it is apparent that it is nothing of the kind. In Drinkhouse v. Van Ness, 202 Cal., at pages 371, 372 [
[5] Nor can we hold that the denial of the right of appellant Ross to conduct the defense in the name of the original defendant was not prejudicial. That right is a substantial one and its exercise might have a very great effect not only upon the evidence produced, but upon the manner in which it was produced, its weight, and also upon innumerable other questions that arise in the trial of any case.
For the reasons given the judgment is reversed.
Cary, P.J., and Marks, J., concurred. *532