Bank of Commerce v. Timbrell

• Decision Date: 21 December 1900
• Citation: 84 N.W. 519,113 Iowa 713
• Parties: BANK OF COMMERCE, H. A. EDWARDS, Receiver, AND B. F. MERRILL, Intervener, Appellants, v. J. M. TIMBRELL
• Court: Iowa Supreme Court

84 N.W. 519

113 Iowa 713

BANK OF COMMERCE, H. A. EDWARDS, Receiver, AND B. F. MERRILL, Intervener, Appellants, v. J. M. TIMBRELL

Supreme Court of Iowa, Des Moines

December 21, 1900

Appeal from Mahaska District Court.--HON. A. R. DEWEY, Judge.

THIS action was originally brought by the Bank of Commerce. Afterwards the bank went into the hands of a receiver, and the court was asked that he be substituted as plaintiff. Whether the order was made or not does not appear. After this request was made, B. F. Merrill intervened, alleging the purchase by him of the claim against the defendant, and an assignment to him of all right, title, and interest of the bank and the receiver therein, and in the suit then pending for its collection. The defendant filed a motion to strike the petition of intervention, alleging, among other grounds therefor, that the intervener is shown to be the absolute owner of the claim, and therefore not a proper person to intervene. The motion was sustained generally, and the petition of intervention was dismissed, as was also the original petition. The plaintiff and intervenor appeal.

Reversed.

J. F. & W. R. Lacey and L. C. Blanchard for appellants.

Seevers & Bryan for appellee.

OPINION

SHERWIN, J.

Section 3594 of the Code provides that "any person who has an interest in the matter in litigation, in the success of either of the parties to the action, or against both, may become a party to an action between other persons, either by joining the plaintiff in claiming what is sought by the petition, or by uniting with the defendant in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant." To entitle the assignee to maintain his action as an intervener, it is quite clear and well established that he must bring himself within some one or more of the provisions of the statute above quoted. It is beyond dispute that he had an interest in the matter in litigation; for before filing his petition the entire interest of the plaintiff in the suit and in the claim on which it was based had been sold and transferred to him, so that he became the sole and only person who had an interest in the matter adverse to the defendant. It cannot logically be said that he was "demanding anything adversely to both the plaintiff and the defendant," because by express assignment all his rights in the pending action became his. In this respect the case differs from Dunham v. Greenbaum, 56 Iowa 303 9 N.W. 220, in which there was a general assignment for the benefit of creditors; and, after the assignment had been made, the assignors, who were defendants in attachment suits which had been brought before the assignment, answered and filed a...