Barnett v. Bodley
| Decision Date | 29 December 1959 |
| Docket Number | No. 38416,38416 |
| Citation | 348 P.2d 502 |
| Parties | E. I. BARNETT and L. E. Barnett, Plaintiffs in Error, v. T. C. BODLEY, Dr. George Adams, Gordon Wells and H. F. Schreiber; and Barnett Tank Line, Inc., and Manganese Industries, Inc., Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. An intervenor is admitted to a proceeding as it stands and in respect of the pending issues and is not permitted to enlarge or compel an alteration thereof to include matters not germane to the issues presented.
2. Where intervention is not indispensable to the preservation or enforcement of a right of petitioners, intervention is a matter of discretion of the trial court.
Appeal from the District Court of Garfield County; F. B. H. Spellman, Judge.
L. E. Barnett and E. I. Barnett were permitted to intervene in an action between plaintiffs and defendant on two promissory notes. From an order sustaining a motion to vacate the order permitting the intervention and dismissing the petition, L. E. Barnett and E. I. Barnett appeal. Affirmed.
W. E. Crowe, Enid, for plaintiffs in error.
Doerner, Rinehart & Stuart, Tulsa, McKeever, Glasser, McKeever & Conrad, Enid, for defendants in error.
Plaintiffs commenced this action against defendant, Barnett Tank Line, Inc., a corporation, for the collection of two promissory notes and foreclosure of a chattel mortgage. Defendant filed its answer and cross petition and an application to make Manganese Industries, Inc., an additional party defendant. In this application defendant alleged the plaintiffs were the organizers and incorporators of Manganese Industries, Inc., and it was a necessary and indispensable party to the action.
Manganese Industries, Inc., filed its waiver of the issuance and service of summons, entered its general appearance, filed a general denial to the answer and cross petition of defendant, and prayed for judgment as set forth in plaintiffs' petition.
Thereafter, E. I. Barnett and L. E. Barnett, upon application and order of the court, were authorized and did file their petition in intervention. Upon motion of plaintiffs and after hearing, the order authorizing the filing of the petition in intervention was vacated and the petition in intervention was dismissed. L. E. Barnett and E. I. Barnett have perfected their appeal from this order.
Plaintiffs alleged the execution and delivery of two promissory notes and a chattel mortgage securing one of the notes to them by Barnett Tank Line, Inc.; that the notes were past due and owing and demand had been made and payment refused. They prayed for judgment on the two notes and foreclosure of the chattel mortgage.
Very briefly stated, the substance of the answer and cross petition of Barnett Tank Line, Inc., is as follows; The answer alleged E. I. Barnett and L. E. Barnett negotiated with the plaintiffs an agreement to engage in a business venture to prospect for, mine, develop and market manganese ore; that plaintiffs were to organize a corporation for this purpose and E. I. Barnett and L. E. Barnett were to have issued to them 40% of the capital stock; Manganese Industries, Inc., was organized and incorporated by plaintiffs; that plaintiffs did not desire to advance any money for the actual operation and Barnett Tank Line, Inc., its president being G. W. Barnett, who is the father of E. I. Barnett and L. E. Barnett, was prevailed upon to execute two notes, and a chattel mortgage, the subject of this action, one note for $6,000 which was secured by the chattel mortgage and one note for $5,000 in favor of plaintiffs to be used as security by plaintiffs to secure a loan; that there was an express representation by plaintiffs that there would be no liability and would be used as collateral only, and would be cancelled when they served their purpose; that the notes and mortgage were issued and delivered for accommodation only, and without consideration, and plaintiffs are not entitled to recover on them.
Barnett Tank Line, Inc., in its cross petition, alleged that it had furnished plaintiffs and Manganese Industries, Inc., an additional $3,000 in funds and personal property; that the action of plaintiffs had damaged its credit and reputation in the sum of $50,000, and prayed for judgment in the sum of $53,000.
The petition in intervention alleged, inter alia, the circumstances resulting in the execution of the $6,000 note by Barnett Tank Line, Inc., and in addition it alleged the acquisition of certain properties in which they had expended $4,400 in acquiring and developing, which should be applied as credit on the $6,000 note; that it was agreed to incorporate Manganese Industries, Inc., and intervenors were to reduce their previously arranged interest in the Company in consideration of the payment by plaintiffs of the $1,600 due on the note which was to be returned; that Manganese Industries, Inc., was organized and plaintiffs have refused to issue to intervenors the shares of stock they were entitled to which had an actual and saleable value of $36,000; that intervenors transferred to Manganese Industries, Inc., mineral interests valued in excess of $100,000, for the stock which was to be issued to them; that there is due intervenor E. I. Barnett for extraordinary expenditures made by him at the request of Manganese Industries, Inc., $2,846, and due to L. E. Barnett the sum of $4,000, for service rendered; that intervenors were summarily discharged, to the damages of the intervenors in the sum of $10,000 actual and $20,000 punitive.
Intervenors prayed that the $6,000 note be cancelled; that they have judgment against plaintiffs for $36,000, the value of the stock, $10,000 actual damages, $20,000 punitive damages and judgment against Manganese Industries, Inc., for $7,920 for extraordinary expenditures and service rendered.
The intervenors contend that they are indispensable parties; that their claims arise out of the same subject matter that forms the basis of plaintiffs' action and with a court of equity having assumed jurisdiction, the entire controversy will be disposed of and full relief administered to all the parties.
The plaintiffs contend that intervenors are not indispensable parties; that the issues raised by the intervening petition are not germane to the issues between plaintiffs and defendant; and the right to intervene under such conditions rests in the discretion of the trial court.
Title 12 O.S.1951 §§ 231 and 236, providing that any party necessary to a determination and settlement of a question involved and any person claiming an interest in the subject matter may be made a party defendant were enacted for the purpose of securing a determination of a controversy between several persons. Title 12 O.S.1951 § 237, provides that any person having an interest in the subject matter of an action may intervene and in construing this section we have said the right to intervene may be divided into two classes. One in which the petitioner claims a lien or interest...
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