3 S.D. 362 | S.D. | 1892
In September, 1890, the respondents brought an action against the defendant the State Bindery Company, a corporation under the laws of the state, upon an alleged indebtedness on account. The defendant company answered, and, while the case was at issue and pending, the defendant company made a general assignment for the benefit of its creditors to the appellant, King. As such assignee he applied to the circuit court, in which such action against his assignor was pending, for leave to intervene for the purpose of defending against such action. Such petition was denied, and he appeals. There are no peculiar facts in this case. It presents the single question whether the assignee of an insolvent corporation has the legal right to intervene in an action against such corporation for the purpose of contesting its liability. In Gale v. Shillock, 30 N. W. Rep. 138, the territorial supreme court, and in Yetzer v. Young, 52 N. W. Rep. 1054, this court, held that, to entitle a party to intervene under section 4886, Comp. Laws, “the interest in the matter in litigation” must be that created by a claim to the demand, or some part thereof, or a claim to a lien upon the property, or some part thereof, which is the subject of the litigation. In this the subject of litigation is not property at all, but the personal liability of the defendant cor
The facts set forth in the answer of the assignor and in the proposed answer of the assignee, as a defense on the merits, are substantially the same, and the record attorneys are the same, but, if this action should result in establishing prima facie evidence of another claim against the assigned estate, the assignee would still not have such a direct interest in the matter now in litigation as would entitle him to intervene. The language of Mr. Justice Field in Horn v. Water Power Co., 13 Cal. 62, has been so often quoted as to have become familiar: “The interest which entitles a party 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.” Now the matter in litigation here between the original parties is simply whether the defendant is indebted to the plaintiffs for goods. It is plain that this question — this “matter in litigation” — will be settled and ended by the judgment for one side or the other, but not until after that,' — assuming that such judgment will be against defendant,— after the “matter in litigation” is thus adjudicated and definitely settled and closed, can any question occur which affects the trust of the assignee. It is plain, therefore, that appellant is not directly interested in the “matter in litigation.” Whether the claim against the defendant thus established by the decision of the “matter in litigation” shall be paid from the assigned estate is another and an independent question. The principle involved is much like that in Lewis v. Lewis, (Minn.) 10 N. W. Rep. 586, where subsequent attaching creditors sought to intervene to defend a then pending action against their debtor, in which his property had also been attached, on the ground that the alleged, cause of action in the first suit was fraudulent. The interveners there, as here, desired to prevent a judgment against the defendant, because they anticipated that such judgment would have to be paid out of property to which they were looking for payment of their claims, but