Leaver v. K. & L. Box & Lumber Co.

• Decision Date: 19 June 1925
• Docket Number: No. 1466.,1466.
• Citation: 6 F.2d 666
• Court: U.S. District Court — Northern District of California
• Parties: LEAVER et al. v. K. & L. BOX & LUMBER CO.

6 F.2d 666 (1925)

LEAVER et al. v. K. & L. BOX & LUMBER CO.

No. 1466.

District Court, N. D. California, Third Division.

June 19, 1925.

William K. White and Charles M. Fryer, both of San Francisco, Cal., for plaintiffs.

Carlos P Griffin, of San Francisco, Cal., for defendant.

KERRIGAN, District Judge.

This is a motion by the defendant and the Eby Machinery Company to permit the machinery company to intervene in the case as a third party defendant. The plaintiffs do not contest the right of the machinery company to intervene, but point out that on the face of the motion an intention is disclosed to file a counterclaim or cross-complaint, setting up matters not legally connected with the case made by the bill and unavailable to the defendant. They therefore urge that, if leave to intervene be granted, it should be duly limited. This presents the same question which was lately raised in the case of Leaver et al. v. Fox, in this court, where the same motion, made on exactly similar facts, was granted. Further consideration of the question and an examination of the authorities convinces me that the order there made was erroneous, and that, except in certain exceptional cases, of which this is not one, an intervening defendant may not avail himself of matters, either as a defense or as a basis for affirmative relief, not open to the original defendant of record.

Intervention is a proceeding by which one not originally made a party to an action is permitted, on his own application, to appear therein and and join one of the original parties in maintaining his cause of action or defense. But, unless otherwise provided by statute, strangers to a suit may not be allowed to intervene therein and become parties without plaintiff's consent. 21 C. J. 343; Shepard v. New Jersey Consolidated Water & Light Co., 73 N. J. Eq. 578, 74 A. 140, 142, 143; Rhinehart v. Victor Talking Machine Co. (D. C.) 261 F. 646, 648. As was said in Shepard v. New Jersey Consolidated Water & Light Company, supra: "There is no such thing known to equity practice as the admission of a stranger as a party to a pending suit, either as complainant or defendant, unless the complainant shall consent thereto, or there be a statute within the provisions of which he may bring his application."

Equity rule 37 of the Supreme Court, of course, has the same effect as a statute. Rhinehart v. Victor Talking Machine Co., supra. But it in broad terms merely provides that "any one claiming an interest in the litigation may at any time be permitted to assert his right by intervention." And in equity rule 30 provision for counterclaims by a defendant is made, but without reference to the rights of interveners as such. It is apparent that, the right to become a party to the litigation being given, the range of activity of the newcomer in the prosecution or defense of the interest he is thus permitted to assert must necessarily be as extensive as, but no greater than, that allowed the original parties to the suit.

The courts, state and federal, have always striven to maintain the integrity of the issues raised by the original pleadings, and to keep newly admitted parties within the scope of the original suit. 21 C. J. 343; Shepard v. New Jersey Consolidated Water & Light Co., supra. Here the vendee of a machine which is alleged to...