Weller & Sons v. Rensford

51 So. 344 | Ala. | 1910

ANDERSON, J.

The various petitions filed by the appellants were not in form or substance petitions for leave to intervene. They in effect assumed that the appellants were in court, and sought to have certain things done in the premises. The first petition was to require the respondent to file his account and vouchers and make a settlement; the second was a mere protest against granting a motion made by the 'respondent; and the third was in no sense a proper petition for leave to intervene. It did ask for a further prosecution of the cause, and that appellants be substituted, if necessary, for the original complainants, or made parties thereto. It may be that this last petition was intended as one for intervention, notwithstanding it asks for many other things; but it does not appear that leave was first-asked or obtained to file same. “A party desiring to intervene should first obtain leave from the court to file his petition.” — 11 Ency. PI. & Pr. 504; Ex parte Gray, 157 Ala. 358, 47 South. 286. It not appearing that leave was obtained to file these petitions, the chancellor will not be put in error for dismissing same, upon motion of the respondent to strike or dismiss said petition.

It is true, that an appeal may be prosecuted from a decree denying intervention. — Gray’s Case, supra; Thornton v. Highland, 94 Ala. 353, 10 South. 442. But inasmuch as we hold that the chancellor did not err in not letting the appellants intervene, the next question which arises is: Are the appellants in such a position as to assign error or complain of the decree in dismissing the bill? Only parties or privies to a judgment can appeal therefrom or assign errors as to same. — Code 1907, § 2837; Reese v. Nolan, 99 Ala. 203, 13 South. 677; Birmingham Co. v. First National Bank, 100 Ala. 250, 13 South. 945, 46 Am. St. Rep. 45. The appellants insist, however, that they were parties, that the chan: eery court had acquired jurisdiction to administer the estate, that they were creditors, and had filed a claim with the register. It may be that the chancery court had acquired jurisdiction to the extent of considering the removal and to stay proceedings in the probate court pending such consideration. — Tygh v. Dolan, 95 Ala. 271, 10 South. 837. But creditors who were not parties to the original suit did not or could not become parties by merely propounding their claim, until there was a formal order or decree of removal and the settlement ordered.

It is also insisted that appellants’ counsel appeared in court and assisted the complainants’ counsel in the prosecution of the cause, and joined in the motion for the appointment of a receiver. “In a suit in equity, as to defendant parties, only those against whom process is prayed are made parties.” — Passmore v. Ellington, 122 Ala. 564, 26 South. 145, and authorities cited. Nor can a party become a plaintiff who did not join in the original suit, except in proper cases, by an appropriate petition and intervention; hut even then he is not made a party, until made so by the order of the court. —Passmore’s Case, supra. There is nothing in the record to indicate that the appellants became parties to the proceedings under any order of the court, or that they were accepted or treated as parties to the cause. The action of counsel may have been intended as a protection of the rights of the appellants, by letting the complainants bear the burden of the cost in case of an adverse decree; but it was no appearance, other than in the guise of an amicus curiae, and appellants are in no position to complain of the action of the court in declining to adopt the friendly suggestions of tlieir counsel. — Birmingham Co. v. First National Bank, 100 Ala. 249, 13 South. 945, 46 Am. St. Rep. 45.

Affirmed.

Dowdell,, C. J., and Saybe and Evans, JJ., concur in the conclusion and the affirmance of this case, but do not wish to be understood as holding or intimating that these appellants had the right to intervene, whether they proceeded properly to do so or not.