103 So. 766 | La. | 1925
Plaintiff, in this case, sued her husband for divorce, praying, at the same time, for separation of property and a dissolution of the marital community. On plaintiff's application, a preliminary injunction was issued enjoining defendant from disposing of the community property pendente lite.
Relator intervened in the proceedings, alleging that prior to the filing of the suit by the plaintiff wife, the defendant husband *276 had agreed by written contract to sell him a certain piece of real estate belonging to the community, and he prayed for the enforcement of said contract.
Intervener caused citations to issue to both plaintiff 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 compel him to do so.
The judge below assigned the following reasons in support of his ruling, viz.:
"(1) That the intervener 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 property pending the trial of the divorce suit, a judgment compelling the sale of the property at this time would be in effect setting aside the previous injunction granted by the court, and would defeat the very purpose of the injunction.
"(3) Even if the intervener has a cause 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 of the main suit is premature."
And in this court, in his return to the rule nisi issued upon relator's application, the respondent judge, from a further examination of the record, calls attention to 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 upon plaintiff.
The intervener undoubtedly could have proceeded by direct action, 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.
The intervention, however, cannot retard the principal suit, Code Prac. art. 391, and its merits can only be passed on at the time the main action is decided. Code Prac. art. 394; Dubroca v. Her Husband, 3 La. Ann. 331. Moreover, the dismissal of the principal suit would carry with it the dismissal of the intervention, reserving to the intervener his right to proceed by a separate action. Walmsley, Carver Co. v. Whitfield, 24 La. Ann. 258; Barron v. Jacobs, 38 La. Ann. 370; Meyers Co. v. Birotte, 41 La. Ann. 746, 6 So. 607; State v. Judge, 48 La. Ann. 458, 19 So. 256; Besson v. Mayor, 49 La. Ann. 280, 21 So. 262.
Conceding that the plaintiff wife is properly before the court on the intervention, on which point it is unnecessary for us to pass, and upon which we express no opinion, relator cannot be permitted to confirm the preliminary default which he caused to be entered, because it would present the 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, the judgment in the main action.
Relator argues that intervention was his only effective remedy. That if he had instituted a direct action, and the suit had been allotted to a division of the civil district court for the parish of Orleans other than the division of the court in which the divorce proceeding was pending, the suit for specific performance would have been ordered transferred to the division seized with jurisdiction of the divorce proceedings to be consolidated therewith. In other words that the case would have been in the same situation it is at present, entirely dependent upon the actions of the principals in the main suit. *278
We think, in taking this position, relator has fallen into error. The distinction, as we see it, is that the intervener takes the case as he finds it, and cannot interfere with the principal litigants. This rule does not apply to a direct action. So that if relator had proceeded by direct action, and his suit had been consolidated with the divorce proceedings, it would, nevertheless, have remained under his control to be proceeded with in accordance with the rules of practice provided by law.
For the reasons assigned, the preliminary writ herein issued is recalled, and relator's application is now dismissed at his cost.
ST. PAUL, J., recused.
