Taylor v. Adair

22 Iowa 279 | Iowa | 1867

Dillon, J.

1. Pleading and practice: intervention. To the lawyer not thoroughly conversant with the sweeping and radical changes in procedure and practice made by the Bevision, the proposition that such an intervention as that sought in the preseilt instance is allowable, would be not a little startling. But our Code (§ 2608) abolishes “ the forms of all actions and suits heretofore existing,” and declares that there shall be but one form of action — a civil action. A mistake as to whether the action should be at law or in equity is no longer fatal. If wrong, it may be changed (§ 2613) without abatement or dismissal (§ 2616), and is waived by failure seasonably to move its correction (§ 2619). Uniformity of procedure is also the rule concerning the prosecution of civil actions (§ 2620). All prior forms of actions and pleadings are also abolished, and the rules of the Code, and not those laid down by Stephen and Chitty, are the tests to determine the sufficiency of all pleadings (§ 2872). The defendant may plead as many defenses as he may have, whether legal or equitable; not only so, but he may set up as many set-offs, counter claims or cross demands as he may have, whether legal or equitable. New parties may be made, and all the machinery is provided to enable parties to adjust their disputes and differences in one and the same action (§ 2890 et seq).

A design to avoid needless multiplicity of actions is everywhere apparent in the present system of procedure. Consonant with the other provisions of this system, are those giving and regulating the rights of third parties to intervene in a pending action. §§ 2930-32.

Section 2930 is very broad. It enacts “ That any person shall be entitled to intervene in an action 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. An intervention takes place when a third party is permitted to become a party to an action between other persons, either by joining the plaintiff in claiming wliat is sought by the petition, or by uniting with the defendant in resisting the claim of plaintiff, or by demanding any thing adversely to both the plaintiff and defendant.”

Applying this section to the case in hand, we first inquire whether Goff, as the executor of Charles Taylor, has “ an interest in the matter in litigation.” What was the matter in litigation ? Clearly the debt which Adair owed. We say the debt rather than the note, for the debt is the substance of which the note is simply a memorial, or visible evidence. Now this debt is alleged, and on the record admitted, to be owing by Adair to Charles Taylor, and not to the plaintiff. If Charles or his executor had possession of the notes, though they are made payable to the plaintiff, he might, on showing his real ownership, sue thereon in his own name. Cottle v. Cole, 20 Iowa, 481, and eases there cited.

So, although plaintiff might sue in his own name on the notes, they being made payable to him, yet if they were in reality the property of Charles, the maker might avail himself of any defense he might have against Charles. These considerations are advanced to illustrate how thoroughly the law penetrates beyond names and forms and externals, into the very substance and kernel.

Now if the plaintiff succeeds, he recovers that which, on the assumption of the truth of the petition of inter-' vention, belonged to another; that which Charles or his representatives may sue him for and compel him to pay. He may be insolvent. He may, if he recovers the judgment, assign it. Why should the real owner of the debt not have the privilege of coming into court, and on establishing, as against the plaintiff, the right to the debt, directly recover it in his own name. This avoids multiplicity of actions, consequent delay and augmented costs. It cannot unduly prejudice the plaintiff. It may, as above suggested, be the only protection against the insolvency or fraud of the plaintiff. We have said that this cannot prejudice the plaintiff, for the court can prevent any unnecessary delay in the determination of the intervention issues.

We are not prepared to admit the truth of the proposition laid down in the demurrer, that the interest of Charles is of such nature as that it could be asserted against the plaintiff only in a court of equity.

Nor are we prepared to admit the further proposition, that, in a law action, an intervenor’s “ interest in the matter in litigation” must be a legal interest to entitle him to the benefit of the statute.

Without prolonging the discussion, we conclude by announcing it as the opinion of the court, that this is a case in which the appellant has shown that he has “ an interest in the matter in litigation against both parties,” a ease in which he demands something adversely to both plaintiff and deféndant.” Eev., §2930. This interest is adverse to the plaintiff, as he claims .against Mm the ownership of the note or debt. His interest is adverse to the defendant, since he claims to recover against Mm a judgment for the amount of the note.

The judgment of the District Court against the appellant is reversed, and the cause remanded for further proceedings. If the judgment in plaintiffs’ favor against the defendant is not collected or paid to plaintiff, it, or the money, will be held to await the - result of the determination of the issues between the plaintiff and the intervenor. If not before collected, and the intervenor is successful, the court will order an assignment thereof to him. If before collected, and the intervenor prevails, ■the court will direct the money to be paid to him.

Reversed.