Curtis v. Curtis

60 So. 167 | Ala. | 1912

MAYFIELD, J.

The original bill was filed by appellee against M. E. Curtis to correct or reform the transfer of a certain note and mortgage. The defendant filed a cross-bill, asking for an accounting and foreclosure. After a final .decree, settling the equities and affirming the findings of the register as to an accounting, the appellant filed a petition seeking to intervene and to contest the right of the complainant to one of the notes secured by the mortgage which was foreclosed. He did not seek to claim a part of the fund in court, to be administered, but denied the plaintiff’s claim or right thereto. In other words, it was sought to reopen the case and allow the petitioner to contest, with cross-complainant, the right and title to one of the notes secured by the mortgage. While, of course, this note would represent a part of the debt secured by the mortgage, the allowance of the petition would have been to reopen the whole case, even though petitioner sought merely to share in the debt secured by the mortgage and have that part it represented set aside or awarded to the petitioner. The court denied the petition, and entered up the following order or decree, from which this appeal is taken: “In this case, after the final decree, the petitioner, -T. Hinton Curtis, as the administrator of the estate of C. C. Curtis, files his petition seeking to reopen the cause. No good reason is shown why he could not have intervened, if he Avas entitled in any event to do so, during the pendency of the cause and before the submission and final decree. I am of opinion that he ought not iioav to be alloAved to come in on this petition and reopen tlie entire cause. The amount involved is only a part of that involved in the entire litigation, and it. seems to me1, he. has a remedy in another manner Avitliout destroying all that has been done and indefinitely delaying the complainant about matters not involved in his petition.—Ex parte Printup, 87 Ala. 148, 6 South. 418. It is therefore ordered, adjudged, and decreed that the petition be and the same hereby is denied, but without prejudice to the petitioner’s right to litigate concerning the mattei*s in such other manner as he may be advised. May 18, 1911. Thomas H. Smith, Chancellor.”

We are not prepared to say that the chancellor was in error. The question of the right of parties to intervene, and the mode of reviewing or revising the orders or actions of courts in allowing or refusing an application to intervene, have been several times before this court. See Ex parte Gray, 157 Ala. 358, 47 South. 286, 131 Am. St. Rep. 62; Ex parte Breedlove, 118 Ala. 172, 24 South. 363; Carlin v. Jones, 55 Ala. 624; Ex parte Printup, 87 Ala. 148, 6 South. 418; Renfroe Bros v. Goetter, Weil & Co., 78 Ala. 314. The former cases of this court, some cases of other courts, and the. textbooks, on this subject, were reviewed, in the first two cases cited above. The practice, in this state, to review or revise actions of courts in declining to alloAV a party to intervene, has been by mandamus, and not appeal; though this court said, in Gray’s Case, 157 Ala. 358, 368, 47 South. 286, 131 Am. St. Rep. 62, that it seemed to the court that an appeal Avas the proper remedy. The authorities in the other states are very much divided. See note to case of Walker v. Sanders, 123 Am. St. Rep. 313, 314.

In the opinion of the Avriter, mandamus is the only remedy in case the petition is denied. If allowed, the petitioner becomes a party, and of course he may appeal, as other parties; but if his petition is denied, and he is not a party, he cannot appeal unless authorized by a statute — and I know of no statute authorizing it. If the court should decline, to enter a decree denying the petition, of course he cannot appeal. If, however, a decree is entered (as Avas done in this case) probably an appeal Avould lie; but the practice has been the. other Avay, in this state, and the fact that mandamus lies in effect denies the right of appeal, for mandamus Avould not lie if an appeal Avould.

It is, however, unnecessary to decide this question ot practice, as we can dispose of the question involved, on its merits, as was done in the Gay Casé. The rule which we think justifies the chancellor in disallowing the petition, aside from the delay which attended the making of it, has been often stated by this court, and may be found stated, in substance, in Ex parte Gray, supra, as follows: “It seems that the regular and orderly course of procedure is first to file an application for leave to file a petition of intervention, of which the parties to the suit should have notice. This is determined from the face of the application. If the allegations of the application show a case in which intervention should be allowed, the leave is granted. The petition for intervention is then filed, on which the court examines the petition and answer, and such testimony, by affidavit or otherwise, as may be produced, and determines the question as to whether the petitioner shall be allowed to inteiwene and become a party to the suit.”—157 Ala., pages 363, 364, 47 South. page 287, 131 Am. St. Rep. 62.

“The practice of intervention, Avliich has grown up in our equity courts, seems to have been borrowed from the civil law, and Mr. Beach says: “Intervention is the generic designation in the civil law of the various technical processes by which, when a suit is pending betAveen two parties, a third party is alloAved to interpose for the assertion of some collateral, implicit, or ulterior right, adverse to that of either or both of the others, or to defend a responsibility involved in the issue of the controversy. * * * No one, even in equity, is entitled to be made a party to the suit, unless he has an interest in its object; yet it is the common practice of the court to admit strangers to the litigation, claiming an interest in its subject-matter, to intervene in their own behalf, to assert their title. — 1 Beach, Modern Eq. Pi*. § 571. Our own court lias recognized the right of intervention, but held that a stranger could not intervene for the purpose of defeating the entire suit, nor for the purpose of litigating with the complainant his right or title to any relief; also that, if it is desired to set up a new and independent claim, it must be done by an original bill in the nature of a cross-bill.—Renfroe Bros. v. Goetter, Weil & Co., 78 Ala. 311, 313-315. In a later case, after considering previous cases on the subject, this court declared that the general rule is that it is not allowable to make a party defendant to a bill over the objection of the complainant, and that there are but two exceptions to that rule, to wit, one growing-out of trust relations, the cestui que trust not being a party, and shoAving that it is necessary to make him a party to protect his interests, and the other Avhere there is a fund in court to be distributed, of Avhich the intervener is entitled to a share.—Ex parte Printup, 87 Ala. 148, 150, 6 South. 418. It is also stated in this case that if 'a person, not a party to a pending suit, betAveen whom and the plaintiff there is no privity, but Avho has a claim or lien on the property, or is interested in the subject-matter of the suit, desires for his oavii protection to present his new claim, to assert his independent right, and raise neAV issues, he must do so by a formal '¡bill, containing- appropriate allegations — an original bill in the nature of a cross-bill, or a supplemental bill, as the case may be.’—87 Ala. 153, 6 South. 419.” 157 Ala. pages 364, 365, 47 South. page 288, 121 Am. St. Rep. 62.

Finding no error, the decree of the chancellor is affirmed.

Affirmed.

All the Justices concur.