199 P.2d 788 | Kan. | 1948
The opinion of the court was delivered by
This is an appeal from an order of the district court refusing to sustain plaintiff’s motion to strike the petition, answer the cross petition of certain intervening members of Local Union 201, United Brotherhood of Carpenters and Joiners of America, filed in a suit by A. J. Porth against the union and- certain of its officers. The parties will be referred to as they appeared in the court below.
This action was commenced on April 13, 1947, in the district court of Sedgwick county. Plaintiff alleged, among other things, that the brotherhood was an unincorporated federation of local trade unions and operated under a constitution and laws. Plaintiff claimed he was a member in good standing of thp local and was its elected business agent and financial secretary; that the local had
On April 18, 1947, a temporary injunction was granted to become effective upon the filing of a bond. Bond was filed and the temporary injunction became operative. Other proceedings were had
“1. That said Intervenors are not proper parties to this suit.
“2. That said pleadings do not disclose that the Intervenors possess a substantial right to be conserved by the intervention.
“3i. That no remedy may be afforded the Intervenors in the pending proceeding consistent with its object and purpose.
“4. That the intervention will unduly interrupt or retard the orderly conduct of the proceeding or result in the frustration of what already has been properly and regularly accomplished by the suit.”
The cause is here on the correctness of the ruling on the motion of plaintiff to strike the answer and cross petition of the intervenors. The appellees (intervenors) have filed a motion to dismiss the appeal for the reason that it was not taken within the statutory time; that the order allowing intervention was not appealable and that the allowance of the intervention was purely a discretionary matter. This motion to dismiss proceeds upon the theory that the appeal is from the order allowing intervention. But such is not the case. The appeal is from the order refusing to strike the pleadings of the intervenors after the intervention had been allowed. It is true that an intervention is within the sound discretion of the trial
Intervention is not an independent proceeding but is ancillary, and generally must be in subordination to and in recognition of the propriety of the main proceeding. (39 Am. Jur. 9'50, § 79.) Having been permitted to intervene, such intervenor may set up personal rights he has in the subject matter different from, and in addition to those of the parties but may not assert an individual right against one of the parties which is not in subordination to and in recognition of the propriety of the main proceeding. An intervenor, when he has the requisite interest, may defend against the petition of the plaintiff where it is alleged and established that because of collusion or fraud the real defendant will not make an adequate and proper defense. But in the absence of such allegation and proof the intervenor may not take over the defense to the petition of the plaintiff. Here there is nothing in the allegations of the intervenors’ pleadings intimating that the defense by Local 201 and its officers was not genuine and in good faith. As we have pointed out, the intervenors raised no new issue, showed no special interest in the subject matter other than that held in common by all of the 500 members of Local 201. When R. E. Angle was discharged as attorney for Local' 201, the validity of those proceedings was tried out in the district court and sustained. When the confession of judgment was entered on December 1, 1947, the intervenors were represented in court by counsel and had an .opportunity to contest the validity of the settlement. If they made any objections to the settlement it has not been recorded. As we have previously stated, subsequent to December 1, 1947, R. E. Angle was reemployed to represent Local 201 and together with Harry N. Routzohn filed a motion in the district court on behalf of Local 201 to' set aside the judgment of December 1, 1947, on the ground that it was made without authority. This motion was overruled and no appeal has
The judgment of the district court is reversed, with directions to dismiss this action as to the intervenors.