24 N.M. 562 | N.M. | 1918
OPINION OP THE COURT.
“When plaintiff’s claim is based on contract, a counterclaim under the first clause must arise out of the subject-matter of plaintiff’s action or be connected therewith or related thereto; and' under the second clause it must be on contract whether it be founded on that declared on by the plaintiff or any other, however disconnected or independent.”
An examination of tbe record discloses that tbe demurrer was sustained only upon tbe ground that Dolores Ulibarri de Gomez was a necessary party to tbe complete determination of said cause. We tbink it is therefore clear that tbe appellant was not denied any right to counterclaim, tbe court simply holding that his counterclaim had made tbe sister a necessary party, and for this reason the first assignment of error is not well taken.
“In order to be entitled to intervene under section 4296, Code 1915, it is necessary that the interest of th© inter-vener in the matter in litigation be direct and' of a substantial nature, not indirect, inconsequential or contingent.”
For the reasons stated, the judgment is reversed, and the cause remanded for a new trial; and it is so ordered.