Bennett v. Whitcomb
| Decision Date | 01 July 1878 |
| Citation | 25 Minn. 148 |
| Parties | James Bennett v. O. P. Whitcomb, Intervenor |
| Court | Minnesota Supreme Court |
Plaintiff brought this action, in the district court for Olmsted county, against the defendant Jolly and others, to reform a power of attorney made by defendant Jolly, and a deed made thereunder, by correcting the description of lands therein contained. O. P. Whitcomb, the appellant, moved for leave to intervene and become a party to the action and file a complaint as intervenor, pursuant to Gen. St. c. 66, § 111, Laws 1876, c. 50. (Gen. St. 1878, c. 66 § 131.) The application was made on affidavit, and the proposed complaint, which alleged title in fee in the intervenor to the lands involved in the action, according to the corrected description sought to be inserted in the deed and power, as purchaser at a tax-judgment sale, and a pretended redemption from such sale by plaintiff, claiming to be the owner, and the issuance and record of a redemption certificate thereof. The proposed complaint of the intervenor denied the allegation of the plaintiff's complaint that the description sought to be corrected was inserted by mistake. The motion was denied by Mitchell, J., and the intervenor appealed.
Appeal dismissed.
Wilson & Taylor, for appellant.
Start & Gove, for respondent.
The object of this action was to correct a misdescription of premises occasioned, as is alleged, by inadvertence and mutual mistake in the execution of certain powers of attorney, and a certain deed made in pursuance thereof, on September 22, 1876, for the purpose of conveying to the plaintiff certain premises purchased by him of the defendants, and to reform such instruments in conformity with the actual agreement and intention of the parties thereto. Defendants made no answer to the complaint, but suffered a default to be entered against them. After such a default, the appellant herein, Mr. Whitcomb, procured, upon his affidavit accompanied with a proposed complaint as intervenor, an order upon the plaintiff to show cause why, upon the facts and grounds therein stated, he should not be permitted to intervene in the action and become a party thereto, by filing and serving his said complaint, for the purpose of defending the action as such intervenor. Upon the hearing, the application was denied, and the order to show cause discharged. From this order the intervenor appeals to this court, and the plaintiff makes the preliminary objection that the appeal will not lie, because the order is not an appealable one, and a dismissal of the appeal is asked.
The statute (Laws 1876, c. 50, amendatory of Gen. St. c. 66, § 111,) under which the right to intervene is asserted, does not seem to contemplate the necessity of obtaining any prior leave of the court to serve and file a complaint, in order to become a party intervenor in an action. In case a party brings himself within the statute, by the facts stated in his complaint, his right of intervention would seem to be an absolute one, not dependent upon either the favor or discretion of the court. All he is required to do is to serve and file, within the proper time, the requisite complaint, and he thereupon becomes a party to the action, with the right to be heard in respect to the matter in litigation so far as concerns any interest disclosed by the complaint, which he may have therein to be affected by its result. According to strict practice, therefore, the application of appellant for leave to file and serve the proposed complaint, as an intervenor herein, was wholly unnecessary; but we see no valid objection, however, to the course which the court pursued in this instance, with the consent of all parties, of considering the question sought to be raised by such application as to the right of the party to intervene upon the complaint -- all the parties in interest being before it and heard -- the same as though the question was properly raised, after complaint filed, upon a motion to strike the same from the files as being wholly unauthorized under the statute, and of determining it accordingly.
Thus considered and treated, the order which is the subject of this appeal is not an appealable one, under Gen. St. c. 86, § 8, subd. 6, because it is not an order made in a special proceeding, or upon a summary application in a civil action after judgment. The term special proceeding, as used in this clause of the statute, has no reference to any judicial proceeding or decision had or made in and during the progress of a civil action to judgment. The order in question was made in the civil action already commenced and pending, and, if appealable at all, it must be because of some other provision of the statute. It is not covered by the fifth subdivision of the same section, as is suggested by appellant's counsel, because it neither determined the action, nor prevented the rendition of a judgment therein. Does it fall within the third subdivison, as an order "involving the merits of the action, or some part thereof?" If the order, in its effect, passes upon or determines any positive legal right or interest of the appellant in the matter in litigation in the action, which, by the statute, he is authorized to interpose therein for adjudication, as an intervenor, or if it deprives him of any opportunity of intervening in respect to any such right or interest, for the purpose of obtaining an adjudication thereon in such action, it may be said, to that extent, to involve in part the merits of such action. If, however, its only effect is to prevent him from intervening as a party in the action, for the assertion of rights wholly irrelevant and foreign to any matter involved in the litigation and controversy therein, it can hardly be said to affect in any way any part of the merits of said action. The character of the order in question, therefore, in this respect, depends upon the construction of the statute under which the right to intervene is asserted, and whether the facts disclosed in the complaint of intervention, considered in reference to the matters in litigation in the action between the original parties thereto, bring the cause within its provisions.
The statute provides that ...
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