3 S.D. 263 | S.D. | 1892
The facts in this case necessary to an understanding of the questions raised are.as follows: Plaintiffs claim to be the owners, by assignment, of a chattel mortgage on a stock of goods. The mortgage was given by Childs & Young, a partnership, of which defendant, Charles H. Young, was, at the time of
Tbe first question presented is as to tbe qualifications of an intervener. Our statute respecting intervention, when and bow it may take place, is the same as that of California, and practically like that of Minnesota and Iowa. Any person may intervene “who has an interest in tbe matter in litigation, — in tbe success of either party.” Section 4886, Comp. Laws. Appellant contends that as a simple judgment creditor she bad such “an interest in tbe matter in litigation” as entitled ber to intervene, tbe argument being that tbe object of plaintiffs’ action' was to get possession of tbe goods, to appropriate them to tbe payment of their alleged mortgage, and thus reduce and divert tbe fund out of which she might otherwise collect ber judgment, and that she was directly interested in preventing this. Tbe subject-matter of tbe litigation was plaintiffs’ right to take tbe goods under their mortgage. It went only to tbe possession. In this question appellant could not be concerned, unless she bad some interest in tbe goods that might be affected by such change of possession; We do not think appellant’s interest as a general judgment creditor, either in tbe matter in litigation or in tbe goods, was sufficiently direct or immediate to entitle ber to intervene. Upon this point tbe case of Horn v. Water Co., 13 Cal. 62, is instructive. Plaintiff brought suit upon a note and mortgage executed by tbe trustee of tbe defendant company. Certain creditors of tbe company intervened alleging fraud in tbe execution of tbe note and mortgage, and ■ that they were void. In tbe supreme court petitions for intervention of such creditors only as bad liens upon the mortgaged property were allowed; those showing no such liens were dismissed. In tbe opinion Field, J., says: “Tbe petition of tbe creditor B. does not disclose any right on bis part to intervene. It shows that be was a simple contract creditor, bolding obligations against tbe company, but it does not show that any portion of them was secured by any lien upon tbe mortgaged premises. ~ * ' * To authorize an intervention, therefore, tbe interest must be that
The “matter in litigation” in the original action in which appellant sought to intervene was plaintiffs’ right to the possession of the goods under their mortgage. In such an action appellant could not intervene without showing that she had some interest in or relation to the property upon which the law would recognize her right to appear for and protect it from going even temporarily into the wrongful possession of another. In this respect there is an analogy between the qualifications of an intervener and one entitled to attack a conveyance as fraudulent. A general creditor, either contract or judgment, may not do it. He must first become interested in the particular property he desires to reach, by attaching his claim to it. In case of real estate, this may be done in this state by docketing a judgment in the proper county, or, in case of personal property, by levying an execution or attachment. The property involved in this case was personal property, and we do not think that appellant, as a judgment creditor merely, was entitled to intervene.
This execution was not in terms returned-unsatisfied, but the sheriff’s certificate showed that he had made a levy, and had after-wards, for reasons stated, wholly abandoned it, released the property thus levied upon, and returned the execution. We do not think the second execution issued under these circumstances was void. We do think, however, that the evidence shows an abandonment of the levy under it. The sheriff returned this execution, with a certificate showing his levy upon the goods in controversy and nothing more. And upon the same day he received another execution upon the same judgment, which he returned into the clerk’s office, August 13th, without any return whatever. Conceding the levy under this second execution constituted a lien upon the goods, the lien did not survive the execution. The execution which succeeded this was not in terms issued as an alias to it, and made no reference to it or to what had been done under it. When the second execution was returned, it was functus officio, and the lien which was created under and depended upon it died with it. What, then, was the effect of the
We think that when the intervener was thus allowed, without objection from any source or on any ground, to prove these facts, she was entitled to the benefit of them, and that plaintiff could not afterwards, and at the close of the trial, ask to have such evidence stricken out or disregarded. Maxwell v. Railroad Co., 85 Mo. 95; Wiggins v. Guthrie, (N. C.) 7 S. E. Rep. 761. These facts could not have been set up in her original application to intervene, nor in her answer filed by leave of court, for they did not then exist. They might have been set out in a supplemental pleading, but failing to object was a waiver of the objection of incompetency. It stands proved then that, on the 13th day of August, an execution was issued upon appellant’s judgment, possibly irregular and voidable, but certainly not void; that under it the sheriff levied upon this stock of goods, and by virtue of such levy had possession of them at the time of the trial. These facts would show appellant’s lien upon the goods, and her interest in the matter in litigation, and consequently her right to intervene, and show, if she could, that the mortgage which was apparently superior to her execution lien, and in her way, was fully paid, or was fraudulent and Yoid as to her. We are constrained to think that the trial court, instead of striking out the intervener’s evidence at the close of the trial, so admitted without objection, and therefore competent for the purposes of this case, should have allowed her motion to make her pleading conform to the facts proved. It seems to us that this would be in furtherance of justice, for it would only give the intervener a foothold in court to show, if she could, that plaintiffs’ mortgage was fraudulent and void or that it had been fully paid. If she can show this, she ought to be allowed to so do, for then plaintiffs ought not to have possession of the goods. If she cannot do it, she will fail in the action, and