Gorman v. GormanGorman v. Gorman
Plаintiff, in this case, sued her husband for divorce, praying, at the same time, for separation оf property and a dissolution of the marital community. On plaintiff's application, a рreliminary injunction was issued enjoining defendant from disposing of the community property pеndente lite.
Relator intervened in the proceedings, alleging that prior to the filing of thе suit by the plaintiff wife, the defendant husband j had agreed by written contract to sell him a certаin piece of real estate belonging to the community, and he prayed for the enforcement of said contract.
Intervener caused citations to issue to both рlaintiff and defendant, and upon their failure to plead thereto, moved for and obtained a preliminary default. The judge a quo, however, refused to permit the default to be confirmed, and intervener has applied to this court for a writ of mandamus to comрel him to do so.
The judge below assigned the following reasons in support of his ruling, viz.:
“(1) That the intervеner cannot come into a divorce proceeding and ask for specific performance of a contract to sell property. His remedy is by direct action.
“(2) A preliminary injunction having been granted prohibiting the sale of any of the community prоperty pending the trial of the divorce suit, a judgment compelling the sale of the prоperty at this time would be in effect setting-aside the previous injunction granted by the court,- аnd would defeat the very purpose of the injunction.
“(3) Even if the intervener has a causе of action, the intervention can only be tried at the same time as the suit between plaintiff and defendant, and the attempt to confirm a default in advance of the trial оf the main suit is premature.”
And in this court, in his return to the rule nisi issued upon relator’s applicatiоn, the respondent' judge, from a further examination of the record, calls attention tо an alleged defective service of the intervention -upon the plaintiff, “the party really at interest,” said service having been made upon plaintiff’s attorney and not uрon plaintiff.
The intervener undoubtedly could have proceeded by direct actiоn, but he chose to become a party to the pending suit, and we think he had that right. Code Prac. art. 390; Civ. Code, art. 2434; Labarre v. Burton,
Tbe intervention, however, cannot retard
the
principal suit, Code Prac. art. 391, and its merits can only be passed on аt tbe time tbe main action is decided. Code Prac. art. 394; Dubroca. v. Her Husband,
Conceding that tbe plaintiff wife is properly before tbe court on the intervention, on which point it is unnecessary for us to pass, and upon which we express no opinion, relator cаnnot be permitted to confirm tbe preliminary default which be caused to be enterеd, because it would present tbe anomalous situation of a judgment having been rendered on a demand that is subject to dismissal at any time prior to, or on rendition of, tbe judgment in tbe mаin action.
Relator argues that intervention was bis only effective remedy. That if he bad institutеd a direct action, and tbe suit bad been allotted to a division of the civil district court for tbe parish of Orleans other than tbe division of tbe court in which tbe divorce proceeding was pending, tbe suit for specific performance would have been orderеd transferred to the division seized with jurisdiction of tbe divorce proceedings to be consolidated therewith. In other words that the case would have been in tbe same situation it is аt present, entirely dependent upon tbe actions of tbe principals in tbe main suit.
Wе think, in taking this position, relator has fallen into error. Tbe distinction, as we see it, is that tbe intervener takes tbe ease as be finds it, and cannot interfere with tbe principal litigants. This rule dоes not apply to a direct action. So that if relator bad proceeded by direct action, and bis suit bad been consolidated with tbe divorce proceedings, it wоuld, nevertheless, have remained under bis control to be proceeded with in acсordance with tbe rules of practice provided by law. '
For tbe reasons assigned, tbe preliminary writ herein issued is recalled, and relator’s application is now dismissed at bis cost.