Delaney v. Sheehan
75 S.E. 632
Ga.
1912
Check Treatment
Lumpkin, J.

(After stating the foregoing facts.) The action to recover personal property, which goes by the name of trover in this State, is statutory, and can be employed when replevin, detinue, or trover lay at common-law. Where title is claimed, it must be legal, not equitable title. Mitchell v. Georgia & Ala. Ry., 111 Ga. 760, 771 (36 S. E. 971, 51 L. R. A. 622). In that case there was a dissent, but it was not so much as to the rule as in regard to its application, the dissenting Justice holding that the prior possession with claim of interest there shown constituted such a title as the plaintiff could protect. By section 5406 of the Civil Code it is declared: “The superior courts of this State, on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require.” This and kindred legislation was intended to afford a party the opportunity to have all his rights in regard to the subject-matter tried in one action in the superior court, without the necessity of having two distinct suits to settle his legal rights and his equitable rights against the adverse parly. Sometimes equitable pleadings by one of the parties may require the making of additional parties, in order that full relief may be granted. But we know of no law by which a third person can, over objection, enter a common-law suit between two parties by which one seeks to recover personal property from the other, file an equitable intervention asserting that neither of the parties is entitled in equity to the property, but that he is so entitled- upon paying a balance of purchase-money, and praying relief accordingly. To permit such a proceeding would create endless confusion. The question of whether the plaintiff has a legal right to recover in his suit against the defendant would be lost in the question of whether a third person, who was' neither plaintiff nor defendant, had equitable rights against the plaintiff or defendant, or both. The intervenors had been guilty of no conversion, and the plaintiff did not so claim. Intervenors pro *514interesse sno are not known in ordinary common-law suits. In a suit on a note or account, it would not be contended that a third person, who was neither plaintiff nor .defendant, could force himself into the case and set up that neither the plaintiff nor the defendant should have a verdict determining the issues between them, but he should have a verdict establishing some equity in himself.

It is declared by the Civil Code, § 5683, that “No amendment adding a new and distinct cause of action, or new and distinct parties, shall be allowed unless expressly provided for by law.” If this can not be done by the parties to the cause, much less can it be done at the instance of an outsider, a new and distinct party who wishes to enter the common-law action, in spite of the parties to it, and set up a new and distinct equitable cause of action in himself. A case sounding in trover, like that here involved, bears no analogy to petitions in the nature of creditors’ bills, or like equitable proceedings, or proceedings properly called in rem, in which a person interested in the subject-matter may intervene. Here the parties did not enter the forum of equitable proceedings. They stood on their common-law rights. The intervenors alone sought to change the nature of the case.

Counsel for the intervenors quoted and relied on a sentence in the opinion in Central Bank v. Georgia Grocery Co., 120 Ga. 883, 885 (48 S. E. 325). In that ease an action of trover was brought, and an affidavit made, in accordance with the statute, to require bail. The sheriff accordingly seized the property. A third party filed an affidavit and bond, in the usual form appropriate to making a statutory claim to property seized under a levy. The trial judge dismissed the claim on the ground that it could not be filed by a third person to property seized by a sheriff under proceedings to require bail in a trover suit. This judgment was affirmed, and the point thus raised was the only one before the court for decision. Near the close of the opinion occurs this sentence: “A third person claiming title to the property which is the subject-matter of a trover suit may become a party defendant, or, in a proper case, file an intervention and have his title adjudicated.” As it does not appear that there was any motion to make the claimant a party defendant in that case, or effort to file an intervention, wffiat was said on that subject was obiter dictum. Even if it were taken as a ruling, it would not help the intervenors in this case. *515They did not propose to become parties defendant, nor was it “a proper ease” in which they could file equitable interventions. It is unnecessary to decide whether there may be any conceivable case in which a third party may, of his own motion and over objection, be made a party to a trover case, or file an intervention therein. If so, this is not such a ease. Nor is it necessary to consider the demurrers to the interventions. Such interventions could not properly be filed at all, without reference to whether their allegations showed grounds for equitable relief. If the intervenors have any legal or equitable rights against one or both of the parties to' the trover case, they may assert them in a proper proceeding. But the refusal to strike their interventions was erroneous. As in the case of Mamie Delaney this point is raised by the cross-bill of exceptions ; and as the ruling finally controls the ease, under the practice heretofore established the original bill of exceptions in that case will be dismissed, without passing on its merits.

In first case, judgment reversed. In second case, judgment reversed on cross-bill of exceptions; main bill of exceptions dismissed.

All the Justices concur.