73 Ind. App. 336 | Ind. Ct. App. | 1920
On and prior to May 13, 1912, Harry L. Glenn and appellant, Ferdinand P. Van Der Veer, were partners doing business under the firm name and style of Glenn and Van Der Veer, as “tax ferrets,” and on said date entered into a contract with the board of county commissioners of Floyd county, Indiana, by which they, for and in consideration of the promise of said board of commissioners to pay to them, for services to be by them rendered in that behalf, a sum equal to thirty-five per cent, “of the amount of - all taxes collected by the said county or its officials for any and all purposes,” agreed to make diligent search of records, etc., to endeavor to discover property subject to taxation in said county, but which had escaped taxation. The said payment to be made to said investigators as such omitted taxes were collected by the county treasurer.
On December 30, 1912, a similar contract was entered into by and between said parties, but covering investigations not within the first contract.
On September 11, 1913, said examiners filed with the auditor of said county, pursuant to such employment, a statement setting forth personal property, as having been owned by one Newland T. DePauw, a resident of said county, and that said personal property had been omitted from assessment, though subject to taxation, in the years 1900, 1901, 1902, 1903, whereupon said auditor prepared a notice in writing and caused the same to be sent to the said Newland T. DePauw, requiring him to show cause why said omitted property should not be placed upon the tax duplicate. Shortly there
Thereupon the executor and said heirs filed their motion for a new trial, which was by the court taken under advisement. While said motion was being so considered by the court, it appears from the record herein that the board of county commissioners of said county, with the approval of the Governor, and Attorney-General, entered into an agreement of compromise with the executor and heirs, whereby, in consideration of their waiving their right of appeal in said cause and the payment to the treasurer of said county of the sum of $5,000, said matter should be fully settled, and said suit dismissed at the cost of the county.
Appellant filed his motion for a new trial, assigning therein various reasons, none of which are necessary to be considered in determining this controversy. The assignment of errors contains twelve specifications, only one of which — the third, which challenges the action of the court in striking said amended intervening petition from the files — is necessary to be considered. If in this matter the appellant did not have a right to intervene and thereby control the litigation and the disposition of the suit, the court did not err in striking out said petition, and all other alleged errors are of no controlling influence.
The appellees have filed their motion herein to dismiss this appeal, because, as they assert, the appellant was not a party to the judgment rendered, has no interest therein, and therefore no right to appeal.
It will be noted that the latter part of the above section is limited to cases where the action is “for the re
The question at issue between the original parties and before the Floyd Circuit Court was, What amount, if any, is due to Floyd county as taxes on the alleged omitted personal property of Newland T. DePauw for the four years specified? The court on a trial found that there was due to said Floyd county on said account a stated amount. Did the appellant have any interest in this money? Did any portion of said debt belong to him? Was it necessary that he be admitted as a party to the action so that thereby the court might be enabled to arrive at the correct amount of money so due to Floyd county? The mere statement of these propositions is sufficient; they need no answer.
In Wightman v. Evanston Yaryan Co., supra, which was a suit in equity, the appellant sought to intervene in a foreclosure suit on the ground of interest. The court said: “The sole ground of their claim of right to' appear in that proceeding and prevent a decree of foreclosure is, that they had certain contracts with the defendant company to furnish them heat and light, which' contracts would be impaired by a decree of foreclosure. In other words, they were mere contract creditors of
The contention of the appellant in the case last cited is basically the same as that of the appellant in this case, viz., that his rights under his said contract, of employment with Floyd county will be impaired, i.e., that the amount of compensation to which he may be entitled under his said contract will be diminished if the proposed compromise and settlement is allowed to stand.
The only parties legally concerned in the settlement of this question were the auditor, as the representative of the taxing units to which said money should be ultimately paid, and the estate of said DePauw.
The appellant had no original legal interest in this claim. If he had any interest therein at the time he filed his said petition, it' was because of his contract with the board of commissioners. That contract, we hold did not, and under the law could not, transfer to him by assignment any legal interest therein; this on grounds of public policy. The transfer by assignment of such an interest could only tend to promote and prolong litigation — a thing which the law abhors and will not tolerate. To entitle one to intervene in an action, his interest as set forth and shown by his claim must be in the subject-matter of the suit. Southern Pacific Co. v. Winton (1901), 27 Tex. Civ. App. 503, 66 S. W. 477; Kelley, etc., Co. v. Newman (1898), 79 Ill. App. 285; Israel v. Metropolitan, etc., R. Co. (1901), 58 App. Div. 266, 69 N. Y. Supp. 218.
The appellant also claims a right to intervene in this cause as a taxpayer, based upon the following allegation in his said petition: “19. Your intervening petitioner further shows the court that he is a taxpayer in
In the case of Anderson v. Jacksonville, etc., R. Co. (1873), 2 Woods 628, Fed Cas. No. 358, certain persons, among them the trustees of the International Improvement Fund of the State of Florida, presented to the court an intervening petition, asking that certain proceedings then pending in said court be stayed. The court, Bradley, C. J., said: “The objection, in substance, is this: that persons who are not parties to a suit have no standing in court to enable them to file a petition in said suit. If they have occasion to ask any relief in relation to the matters involved in said suit, or to the proceedings therein, they must file an original bill. This is undoubtedly the general rule. Strangers to a cause cannot be heard therein either by petition or motion, except in certain cases arising from necessity, as where the pleadings contain scandal against a stranger, or where a stranger purchases the subject of litigation pending the suit, and the like. * * * It would be a source of great hardship if persons not parties were allowed thus to come in and interfere.”
In the case of Southern Pacific Co. v. Winton, supra, an attorney had entered into a contract with his client to prosecute a suit, and to receive as compensation a
Under any view of this case, the appellant had no right, upon the record before us, to intervene in this case, and the judgment is therefore affirmed.