13 Cal. 62 | Cal. | 1859
Baldwin, J. and Terry, C. J. concurring.
It was error to render judgment for the defendants. A copy of the note in suit is attached to the complaint, and the answer
But, without resting the case upon this, we pass to a consideration of the merits of the intervention: The petition of the creditor, Rawle, does not disclose any right on his part to intervene; it shows that he was a simple contract creditor, holding obligations against the company—but it does not show that any portion of them was secured by any lien upon the mortgaged premises. His intervention is only an attempt of one creditor to prevent another creditor obtaining judgment against the common debtor—a proceeding which can find no support, either in principle or authority. 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 intervenor will either gain or lose by the direct legal operation and effect of the judgment. The provisions of our statute are taken substantially from the code of procedure of Louisiana, which declares, that, “in order to be entitled to intervene, it is enough to have an interest in the success of either of the parties to the suit;” and the Supreme Court of that State, in passing upon the term interest, thus used, held this language : “ This, we suppose, must be a direct interest, by
The petition of Shaffer and others, stands upon a different footing. It shows that they were judgment creditors, having liens, by their several judgments, upon the mortgaged premises at the time of the institution of the present suit. As such, they were subsequent incumbrancers and necessary parties to a complete adjustment of all interests in the mortgaged premises, though not indispensable parties to a decree determining the rights of the other parties as between themselves. For such adjustment, the Court would have been justified in ordering them to be brought in, either upon their own petition, as in the present case, or by an amendment to the complaint. (Sargent v. Wilson, 5 Cal. 504; Moss v. Warner, 10 Cal. 296; Montgomery v. Tutt, 11 Cal. 307.)
It would probably be the better course for the Court to direct, in a case like the present, an amendment to the complaint. No question, however, as to the form in which these parties assert their right is made, and we could not regard the point, if it were made, as essential to the determination of the priorities of the several liens. Looking, then, to the petition of these judgment creditors, and treating it as an answer to the complaint, and the
As against subsequent creditors, then, a conveyance, even if
The only statement in the petition of the creditors in reference to any indebtedness of the company is that before the execution of the note and mortgage the company had become indebted to a much greater amount than the amount of the capital stock paid in. This statement may be strictly true, and yet the fact exist that the company was not at the time indebted in any amount whatever. The indebtedness may have been contracted, and have been entirely canceled, or the company may have been in possession of property greatly exceeding its existing obligations, and with which such obligations were afterwards entirely satisfied.
The views which we have expressed dispose of the case upon the pleadings and petitions of intervention, and render it unnecessary to pass in review the questions raised upon the testimony. The judgment must be reversed, and the Court below directed to enter a judgment against the company for the amount due on the note described in the complaint, and to decree a sale of the mortgaged premises, and the application of the proceeds of the sale : first, to the payment of such judgment and the amount due the other defendants, such payment to be made to the parties pro rata; and, second, to the payment of the several judgments of the interveners, Shaffer and others, in the order in which they became liens upon the mortgaged premises; and to dismiss the petition of the intervener, Rawle.
Ordered accordingly.