Stich v. Dickinson, 38 Cal. 608

Stich v. Dickinson

38 Cal. 608 | Cal. | 1869

Crockett, J., delivered the opinion of the Court:

The plaintiff, Stich, claims to be the owner of a note and mortgage made by the defendant, Dickinson, to one Jordan, *610since deceased, and prays for a judgment of foreclosure and sale. The defendant, in his answer, denies that the plaintiff is the owner of the note and mortgage, or that he has any interest therein, and sets up other defenses. Goldner filed an intervention, as administrator of Jordan, in which he denies that Stich has or ever had any title to or interest in the note and mortgage, which he avers belonged to .Jordan at the time of his death, and to which the intervenor is entitled as his administrator ; and he prays for a foreclosure of the mortgage and a sale of the property for the benefit of Jordan’s estate. The defendants demurred to the intervention on the ground, among others, that it does not state facts which entitle the intervenor to intervene, inasmuch as it does not show that the intervenor has any interest in the matter in litigation, in the success of either of the parties, or against both or all of them. The demurrer was sustained and a judgment was thereupon entered against the intervenor, from which judgment he prosecutes this appeal.

The respondents claim that the appeal is premature, there having been no final judgment in the action as between the original parties to it. But this position is not tenable. There has been a final judgment against the intervenor, and no further judgment can hereafter be entered as to him. So far as he is concerned, the judgment is final, and ended the litigation in that Court.

Section 659 of the Practice Act provides that any person shall be entitled to intervene who has an interest in the matter in litigation, in the success of either of the parties to the action, or an interest against both; and it permits the intervenor either to join the plaintiff in claiming what is demanded. by the complaint, or to unite with the defendant in resisting the claim of the plaintiff, or to demand relief adversely to both the plaintiff and defendant. The intervention in this case comes within the latter category, if either. The intervenor certainly has no interest in common either with the plaintiff or the defendant; but we think he has an interest in the matter in litigation adverse to both, within the meaning of the section referred to. He has an interest against the pretension of the plaintiff to be the owner of the note and *611mortgage, and to have a decree of foreclosure for his benefit, and against the defendants for the collection of the debt. The subject-matter of the litigation is the note and mortgage, and the right of the plaintiff to have a decree of foreclosure and sale. The intervenor claims as against the plaintiff that he, and not the plaintiff, is entitled to the decree of foreclosure; and as against the defendants, that the mortgaged debt is due and unpaid, and that he is entitled to a foreclosure. In Horn v. The Volcano Water Company (13 Cal. 70), this Court thus defines the rule : “To authorize an intervention, therefore, the interest must be that created by a claim to the demand, or some part thereof, in suit, or a claim to or lien upon the property, or some part thereof, which is the subject of litigation.” In this case the intervenor claims the demand in suit, to wit, the note and mortgage, and we can perceive no reason, founded on the policy of the law, which" should preclude the settlement of the whole controversy in one action.

Judgment reversed and cause remanded, with an order to the District Court to overrule the demurrer to the intervention, with leave to the plaintiff and defendants to answer the same.

" Sprague, J., expressed no opinion.