Consolidated Liquor Co. v. Scotello

• Decision Date: 04 March 1916
• Docket Number: No. 1786.,1786.
• Court: New Mexico Supreme Court
• Parties: CONSOLIDATED LIQUOR CO.v.SCOTELLO & NIZZI ET AL. (BADARACCO, INTERVENER).

21 N.M. 485

155 P. 1089

CONSOLIDATED LIQUOR CO.

v.SCOTELLO & NIZZI ET AL. (BADARACCO, INTERVENER).

No. 1786.

Supreme Court of New Mexico.

March 4, 1916.

Syllabus by the Court.

Sections 4296-4298, Code 1915, held not to authorize the intervention in an attachment proceeding by a landlord to assert his landlord's lien upon property seized under the attachment writ.

Both courts of law and courts of equity have the inherent power to prevent the abuse of their process to the detriment of third parties by supplying the means, in the principal action, of trying the title to property in the custody of the law. This is a rule of necessity, not a rule of convenience, and is available only when no other adequate remedy exists.

Appeal from District Court, Bernalillo County; H. F. Raynolds, Judge.

Action by the Consolidated Liquor Company against Scotello & Nizzi and others, wherein Guiseppe Badaracco intervened. From judgment for defendants, plaintiff appeals. Reversed and remanded, with directions to dismiss the intervention.

Hanna, J., dissenting.

Both courts of law and courts of equity have the inherent power to prevent the abuse of their process to the detriment of third parties by supplying the means, in the principal action, of trying the title to property in the custody of the law. This is a rule of necessity, not a rule of convenience, and is available only when no other adequate remedy exists.

Marron & Wood, of Albuquerque, for appellant.

Pierce & Pierce, of Albuquerque, for appellees.

PARKER, J.

This is an appeal from a judgment of the district court of Bernalillo county, awarding to an intervener a judgment, establishing his landlord's lien and awarding him a certain portion of a fund in the hands of the court to satisfy said judgment. The original action was begun by the plaintiff, appellant here, against the defendant to recover a sum of money for goods, wares, and merchandise sold and delivered. There was also an attachment issued in the case and levied upon the property of the defendant, which was situated in the building of the intervener. The action was begun on the 6th day of January, 1914. On the 24th day of January, 1914, the intervener filed his petition in intervention, and his intervention was allowed by the court. On the 26th of January, 1914, the plaintiff petitioned the court for an order of sale of the property as perishable, and the order of sale was then made. The property was sold by a person appointed by the court, and he brought in the proceeds of the sale and deposited the same in the registry of the court. On the 27th of January, 1914, one of the defendants answered the complaint and attachment affidavit. On the 28th of January, 1914, a motion to strike the petition in intervention was filed upon the grounds: (1) Because the said intervener had no right to file his petition as appears on the face of the petition; (2) because the court did not grant leave to file the intervention petition; (3) because the intervener had lost his landlord's lien by taking a judgment for the amount due in the court of the justice of the peace in precinct No. 12 of said Bernalillo county. This motion was overruled by the court. On the 24th of March, 1914, a trial was had between plaintiff and defendants, and a judgment was awarded, sustaining the attachment and awarding recovery on the main issue. On the 15th of May, 1914, without notice to the plaintiff, a judgment by default for want of an answer was rendered in favor of the intervener against the plaintiff and defendants for $130.50, being $100.50, the amount for which the intervener claims his landlord's lien, and $30 for the use and occupation of the same premises after the attachment, and establishing the intervener's prior lien upon the fund in the hands of the court, and ordering the clerk to pay the amount to the intervener out of said fund. On the 19th of January, 1915, a motion to vacate the judgment in favor of the intervener was filed upon the grounds: (1) That the plaintiff was not in default at the time of the entry of said judgment; (2) because no time had been fixed by the court for pleading to the intervening petition, nor had any rule or order been procured requiring the plaintiff to plead thereto; (3) because no motion for said judgment was filed in the cause; (4) because no notice of the application for judgment was given to plaintiff; (5) because plaintiff has never been heard upon the issues and questions presented by the intervening petition; (6) because the facts stated in the intervening petition are insufficient to warrant an intervention in the original action; (7) because no order was ever made allowing the intervention. This motion to vacate the judgment was overruled by the court.

[1] 1. The most important question presented and argued in the briefs is the question of the right to intervene in a case of this kind. It is argued by counsel for appellant that the petition in intervention was filed under the provisions of our intervention statute (section 4296-4298, Code 1915). If this contention is correct, there is undoubtedly, under the previous holdings of the territorial court, no right to intervene in this case on the part of the intervener. Section 4296, Code 1915, provides as follows:

“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 declaration, or by uniting with the defendants in resisting the claim of the plaintiff or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the cause and before the trial commences.”

This section was first considered by the territorial court in the case of C. J. L. Meyer & Sons Co. v. Black, 4 N. M. (Gild.) 352, 16 Pac. 620. Action was brought by the Meyer Company in assumpsit against Black, and the attachment was issued and levied upon the property which had been assigned by Black for the benefit of creditors. The assignee intervened, claiming to own and hold the property for the purposes stated in the deed of assignment. In deciding that the assignee had no interest in “the matter in litigation,” the court said:

“The statute declares that any person who has an interest in the matter in litigation may become a party, etc. Now, it is clear that the matter in litigation was the alleged indebtedness from Black & Co. to plaintiff. The facts set forth in the petition of intervention, which must be the facts upon which the intervention rests, do not show any interest that Fenton may have in the indebtedness alleged in the declaration to be due plaintiff from defendant, nor that he would in any way be affected by the judgment which might be rendered, but, on the contrary, they show an utter absence of interest therein. * * * It is true that a portion of this property has been attached by plaintiff, but that fact does not make the property or its ownership one of the essential questions to be determined in the litigation between plaintiff and defendant. Whether the property belongs to defendant or to Fenton, as assignee, would, if determined, shed no light upon the fact distinctly alleged by plaintiff in his declaration, and as distinctly denied by defendant in his plea, namely, that defendant was indebted to plaintiff.”

In Lewis v. Harwood, 28 Minn. 428, 10 N. W. 586, the reason for holding that under circumstances of this kind the intervener has no right to intervene, the Supreme Court of Minnesota said:

“The subject-matter which the plaintiff presented to the court, by his complaint, for adjudication, was the indebtedness of the defendants to him upon the promissory notes. In a legal point of view the interveners had no interest whatever in the question of the existence or nonexistence of such indebtedness. That was a matter wholly between the plaintiff and the defendants, with which no stranger had a right to interfere. When the judgment was entered against the defendants, the whole original subject-matter of the suit was disposed of; and the case presents the anomaly of a contention, still going on, to eventuate in another and independent judgment, leaving the first judgment in full force. This is not intervention to protect an interest in the matter in litigation, but the introduction of a new subject of litigation. It is true, the new subject-matter grows out of the attachment; but a writ of attachment is a part of the remedy, and has nothing to do with the cause of action. If property is seized by virtue of the writ to which another has a better right, the vindication of such right involves a new and independent judicial inquiry. * * * It may be that it would be a convenient and useful practice to determine all questions as to the ownership and right of the avails of property seized on legal process in the suit in which the seizure was made, and to determine all questions of preference between different attaching or execution creditors in one of the suits, under proper regulations, devised to protect the rights of all parties; but to justify such a practice we are satisfied there ought to be a more distinct expression of the legislative will.”

The holding in this jurisdiction is evidently a minority doctrine. Thus, in Potlatch Lumber Co. v. Runkel, 16 Idaho, 192, 101 Pac. 396, 23 L. R. A. (N. S.) 536, 18 Ann. Cas. 591, the Supreme Court of Idaho, in discussing a statute identical with ours, lays down what we believe to be the majority doctrine, and holds that in a case like the one at bar, the right to intervene under the statute is plain. The court says:

“The contention is made that since there is no contest between the plaintiff and defendant over the title of the attached property, and that the only contest between them is over the indebtedness, therefore the intervener should not be let in...