92 N.W. 798 | N.D. | 1903
_ The plaintiff appeals from an order of the district court of Cass county refusing his motion to vacate and set aside an order previously made permitting Edwin L. Dows, an incompetent person, by H. W. Gearey, his guardian, to intervene in the action. The action is brought for the purpose of cancelling and foreclosing a contract whereby the plaintiff, Kernahan Dickson, agreed to sell and convey to the defendant, Elizabeth M. Dows, 320 acres of farm land situated in Cass county, upon the crop-payment plan. The defendant answered the complaint, and at the same time Edwin L. Dows, through his guardian, H. W. Gearey, applied to the court, and was granted án ex parte order permitting him to intervene in the action, and in pursuance of such permission he served his complaint in intervention. Thereafter, upon the affidavit of plaintiff’s counsel, an order was obtained directing the said intervener to show cause
The sole question to be determined upon this appeal is whether the complaint of the intervener disclosed that he had such an interest in the matter in litigation in this action as would entitle him to intervene against the plaintiff’s objection. We are clear that the complaint in intervention does not disclose that he has the requisite interest. The entire source of the intervener’s alleged right to intervene is found in section 5239, Rev. Codes, which, so far as material, reads as followes: “Any person may before the trial intervene in any action or proceeding, who has an interest in the matter in litigation in the success of either party, or an interest against both. * * * ” What the interest must lie in order to authorize an intervention under this section has been repeatedly pointed out, in numerous cases. In Smith v. Gale, 144 U. S. 509, 12 Sup. Ct. 674, 36 L. Ed. 521, the court, in referring to this particular section, said : “These provisions of the Dakota Code above cited are found in the Codes of several of the states, and appear to have been originally adopted from Louisiana, wherein it is held by the supreme court, interpreting a similar section, that the interest which entitles a party to intervene must be a direct interest, by which the intervening party is to obtain immediate gain or suffer loss by the judgment which may be rendered between the original-parties. Gasquet v. Johnson, 1 La. 431. In Horn v. Water Co., 13 Cal. 62, 73 Am. Dec. 569, the supreme court of California had occasion to construe a similar provision of the Code of that state, and held (speaking through Mr Justice Field, now a member of this court) that ‘the interest mentioned in the statute which entitles a person to intervene in a suit between other parties must be in the matter in litigation, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment. * * * ’ ” The same construction was placed upon the section by this court in Bray v. Booker, 6 N. D. 526, 72 N. W. Rep. 933; also by the supreme court of Minnesota in Lewis v. Harwood, 28 Minn. 428, 10 N. W. Rep. 586, in which the cases from Louisiana and California are cited with approval. See, also, 17 Am. & Eng. Enc. Law (2d Ed.) 180. It is not claimed by the intervener, neither can he claim, that he has any interest in the contract involved in this action. He is an entire stranger to it, and does not claim or pretend to be interested in it in any way whatever. Whatever rights he may have as against the plaintiff, or in the land, can in no way be affected by -any judgment rendered in the action. His rights in
The order appealed from will be reversed, and the district court is directed to enter an order striking out the intervener’s complaint.