95 Kan. 254 | Kan. | 1915
The opinion of -the court was delivered by
The Freeborn Engineering & Construction Company took a contract to construct a system of waterworks for Osage City, giving the city an indemnity bond executed by itself as principal and the National Surety Company as surety. Nellie Howard sued the city and construction company for injuries arising out of leaving a trench uncovered in the street, and recovered judgment for five thousand dollars, which was affirmed by this court. (Howard v. Osage City, 89 Kan. 205, 132 Pac. 187.) When the appeal was
The principal controversy now is over the refusal to make new parties, and it is insisted that the order complained of is not a final order from which an appeal can be taken; that the surety companies are not necessary parties to the mandamus action and that the discretion of the district court in refusing to make new parties was not erroneously exercised. On the other hand, it is argued that the evidence presents a sitúation in which two surety companies, each bound for the payment of a judgment, are standing .on unequal terms for the reason that by collusion of the judgment creditor, the construction company and one of the surety companies, the latter is in position to save itself harmless and cast the burden on the other surety company and turn back to the insolvent construction company the bonds deposited by it to save harmless the surety company which seeks to take undue advantage of the situation. With this complaint as a basis it is argued that it would be grossly inequitable and unjust for the court to proceed in mandamus against the city without bringing in the surety companies so that the controversy as between them could also be determined. From the counter-abstract it appears that the application for a writ of mandamus was made March 6, 1914, the National Surety Company’s application to intervene and for an order to make additional parties was filed March 12, and that on the next day, March 13, the city filed a petition against the two surety companies
If it be conceded or determined that the ruling of the trial court refusing to make new parties is a final order the question remains whether or not it was such an abuse of discretion as to amount to prejudicial error.
Section 566 of the civil code defines a final order as one affecting a substantial right in an action when such order, in effect, determines the action and prevents a judgment. Considering this language literally .it would be difficult to say that a refusal to allow a party to intervene in an action either affects a substantial right in an action or determines the action or prevents a judgment. The question has never been passed upon in this state, but certain other courts have ¡held that the refusal of an application to intervene is appealable. In Henry v. Travelers’ Ins. Co., 16 Colo. 179, 26 Pac. 318, it was held that “The denial of an application to intervene is a final judgment as to the petitioner which may be reviewed in this court upon writ of error.” (Syl. ¶ 2.) The action by the holder of certain bonds was to secure the appointment of a receiver to take charge of certain mortgaged property, the defendant, Henry, in his petition alleged that he was the owner of $10,000 of the $200,000 worth of bonds sought to be foreclosed, and was also the
“Upon the entry of the judgment or order denying Henry’s application to intervene, the cause was finally determined as to him; and, unless he be entitled to a writ of error from this court, he is precluded from any review of such judgment. D. & N. O. R. R. Co. v. Jackson, 6 Colo. 340; Curtis v Lathorp, 12 Colo. 169.” (p. 184.)
Harman v. Barhydt, 20 Neb. 625, 31 N. W. 488, involved a chattel mortgage to secure certain promissory notes. The property was sought to be replevined, and Harman asked leave to intervene, alleging that he owned certain of the notes secured by the mortgage, and it was held that a denial of this application to intervene was a final order and reviewable on error. In National Distilling Co. v. Seidel, 103 Wis. 489, 79 N. W. 744, it was held that while if the petitioner is denied leave to intervene in an action he can not appeal from the judgment rendered in the cause and thereby test the denial of his application, he may appeal from an order denying leave to intervene, although under the particular circumstances of that case it was held that the court did not abuse its discretion in denying the intervention.
These cases appear to go upon the theory that if the applicant were denied th'e right to intervene he must of necessity be practically without remedy, or at least subject to great loss or embarrassment. It is also recognized that the spirit of the code is in favor of the settlement of a controversy, so far as practicable, without multiplicity of suits and that its provisions relating to parties should be liberally construed. Section 35 of our civil code provides that any person may be made a party defendant who is a necessary party to a complete determination or settlement of the question involved. Here the question involved is the right of plaintiff Ousley to a writ of mandamus against the city, but on the theory of the city and the National Surety Com
So far as the defense sought to be made as. to the rightfulness of the issuance of the writ against the city and its officers is concerned, the case is not properly before us, as the order for an alternative writ is interlocutory and not appealable. (Civ. Code, § 566.)
While ordinarily a proceeding in mandamus involves only the plaintiff or defendant under obligation to perform some clear legal duty, and while section 722 of the civil code provides that the issues joined by the writ and the answer must be tried, still it has become
The order refusing the application of the National Surety Company to be made a party is reversed and the cause is remanded with directions to grant -the application of the National Surety Company to have the Southern Surety Company made a party, and to take such further steps in accordance herewith as may be proper.