Harlan v. Eureka Mining Co., 10 Nev. 92

Harlan v. Eureka Mining Co.

10 Nev. 92 | Nev. | 1875

*94By the Court,

Hawley, C. J.:

The sale and delivery of certain ore by plaintiff Harlan to the Eureka Consolidated Mining Company, defendant, and the value thereof, were the only issues raised by the complaint and answer. The Jackson Mining Company was, by leave of the court, allowed to intervene and become a party to said action upon filing a petition, alleging: That it was the owner, and entitled to the possession of the ore; that the plaintiff and one N. P. Oopp wrongfully and unlawfully took the same, and the said N. P. Copp pretended to make sale thereof to the said defendant; that said defendant thereupon took possession of said ore, and worked and converted.the same to its own use and benefit, to the damage of the Jackson Mining Company in the sum of three thousand one hundred and forty-four dollars. It prayed judgment against both plaintiff and defendant for the value of said ore. Plaintiff filed an answer denying the allegations of intervener, and the cause was tried upon the issues thus presented. A verdict was rendered in favor of plaintiff against defendant for the value of the ore, assessed at three thousand one hundred and forty-four dollars. Both defendant and intervener appeal.

Plaintiff contends: First, that there is no conflict upon the issues made by the complaint and answer. Second, that the intervener was improperly in court because its petition did not state facts sufficient to constitute a cause of intervention, and thereupon argues that this Court cannot consider the merits of this appeal upon the issues presented by the petition of intervention. We think this objection is well taken. It is only necessary to consider the second point, as there is no controversy upon the first. The Practice Act provides that “any person shall be entitled to intervene in an action who has an interest in the matter in litigation, in the success of either of the parties to the action, or an interest against both.” (Stat. 1869, p. 287, Sec. 599.)

As a general rule, we think it is well settled that to en*95title a person to intervene be must have such an interest in the matter in litigation that he would either gain or lose by the direct legal operation and effect of the judgment which might be rendered in the suit between the original parties. The code of practice in Louisiana is similar to the provisions of the statute of this State. In Brown & Sons v. Saul et al., the court held that the code contemplated an interest which the intervener might have connected with that of one or the other of the original parties to a suit either plaintiff or defendant. “The interest,” said Mathews, J., “must be direct and closely connected with the object in dispute, founded on some right, claim, or lien, either conventional or legal.” (4 Martin La. N. S. 436.) The same justice, in the case of Gasquet et al. v. Johnson et al., after quoting the provisions of the code, said: “This we suppose 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.” (1 La. O. S. 158.)

The statute of California is identical with the statute of this State. In Horn v. The Volcano Water Company, Field, J., in delivering the opinion of the court, said: “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.” (13 Cal. 69.)

In the case under consideration, the intervener had no union of interest in relation to the subject-matter in dispute between the original parties. It must take the action as it found it, and cannot change an action upon contract to an action of tort. Conceding that the intervener was the owner of the ore, and that it could elect to waive the'tort and sue for the value, it certainly would not be entitled to recover the same in an- action upon an express contract made by other parties. It made no difference to the in-tervener whether plaintiff or defendant lost or won the suit. *96Its right of action against either or both would not have been in any manner affected by any judgment that could be rendered between the original parties. We are satisfied that the intervener in this case had no such interest in the matter in litigation between plaintiff and defendant, either in favor of or against either party, or adversely to both, as is contemplated by the statute.

Intervener insists that this objection should not be considered by this Court, because it was not taken in the court below at the proper time. If the petition had stated facts sufficient to constitute a cause of intervention, this position would be correct. Any informality or imperfection in the statement of facts would be deemed to have been waived. But this is not such a case. Here, there is no statement of any fact which entitled the Jackson Mining Company to intervene, and the petition must be treated the same as a complaint which fails to state facts sufficient to constitute a cause of action. This disposes of the appeal adversely to intervener. The defendant makes substantially the same argument against the objections interposed by plaintiff.

The mere fact that defendant joined with the intervener in making the defense as to the ownership of the ore, does not, in our judgment, entitle it to take advantage of the introduction of the irrelevant testimony. This testimony must be considered as having been admitted by the court not under the original pleadings, but upon the issues presented by the petition of intervention, which was improperly before the court. As we think the intervention ought not to have been allowed, it follows that all the evidence relating to the issues presented by it should be disregarded. True, the defendant might have denied plaintiff’s ownership of the ore, and made the same defense as was made by the intervener; but under its pleading it did not do so, and we are of opinion that it was not in a position to take advantage of the error of the court in allowing the intervention. If defendant desired to make the defense that plaint-. iff was not the owner of the ore, and had no right to sell it, it should have asked leave to so amend its answer as to *97present this issue. While the law abhors a multiplicity of actions, and favors the uniting in one suit of all parties who have an interest in the matter in litigation, it does not sanction the violation of all rules of pleading and practice, as to the proper manner of bringing parties before the court, in order to prevent the former or accomplish the latter.

Owing to the anomalous condition of the pleadings in this case, we are of opinion that the judgment of the district court must be affirmed.

It is so ordered.