166 N.W. 226 | S.D. | 1918
Lead Opinion
Plaintiffs, who are appellants, brought an action against one Logan for cancellation of a contract for the sale and conveyance of certain real estate. Maas was made a defendant, as claiming some interest in' the property. During the pendency of the action,- and at a time when service by publication on Logan as a nonresident was incomplete, but after Logan had acquired knowledge of the commencement of the action, and after personal service oni Maas, plaintiffs and defendants met and settled -their differences. In ‘the settlement plaintiff paid Logan $1.200, and in consideration thereof received a quitclaim deed from Logan in release of all claims or interest under the contract. The settlement was consummated on or about the 24th of March, 1916, and plaintiff directed their attorneys to -dismiss the action. On April 1, 19x6, plaintiffs’ .attorneys1 presented to- the trial- court an application, reciting- the settlement and its terms, and that no appearance or answer had been made in the action, and asked a dismissal of the action pursuant to- the terms of settlement, which was granted on that date. On March 31st, the clay preceding the entry of this order. Anders-on, who is respondent here, served a notice and motion for leave to intervene as a defendant in the action with his complaint in intervention, which alleged that on March 17, 1916, the -defendant Logan 'had assigned and transferred' to him all her rights under the real estate contract; that he had tendered to plaintiffs the money due them, and demanded a -deed according- to- the terms- of the contract, and upon refusal thereof .bad deposited the money in a hank of good repute and given plaintiffs' notice thereof. On- April- 10th, the return day of the notice -of motion for intervention, the plaintiffs mot appearing, the trial court, upon application- of respondent as intervener, issued an order to -show -cause, reciting the - proceedings -dismissing the actlion, and that plaintiffs’ attorneys had not revealed to the court 'that notice and complaint in -intervention had been served on them prior to the application for an-cl -dismissal of the action, and requiring plaintiffs’ attorn-evs to show cause why the order of dismissal should not be vacated and intervention all-o'w-ed. The -order to show cause was served on plaintiffs' attorneys, and on the return day-they appeared and objected to the jurisdiction
The action of the trial court .is affirmed.
Dissenting Opinion
(dissenting). Being of the opinion that, ■if the trial court had- .been fully advised' -of the pending motion for intervention, such court could not rightfully have refused to--dismiss the action upon plaintiff’s motion, I dissent from the foregoing decision. This- court in Brettell v. Deffebach, 6 S. D. 21, 60 N. W. 167, pointed out the line bey'omd which, so- far as I am advised, aid courts-, and certainly this, court, have refused to go in opening u.p judgments at the behest of those not -parties to the actions. The party seeking the opening -of the judgment must toe one who w'oulid have ,a night to become a party by substitution or intervention and 'the judgment must be prejudicial to his claimed rights. Anderson was not a party to the -action when he moved the opening of this judgment. Under all authorities one seeking 'intervention' is- n'ct -a party until an order is made allowing intervention. The judgment of dismissal was in no respect prejudicial to Anderson. The distinction between the right of a plaintiff to dismiss where there is a person seeking intervention and his right to dismiss where he has brought an action, and' the defendant against wh'c-se protest he .is seeking such dismissal 'has counterclaimed, is too obvious to need elucidation.