Dickson v. Dows

• Decision Date: 20 December 1902
• Parties: DICKSON v. DOWS (DOWS, Intervener).
• Court: North Dakota Supreme Court

11 N.D. 407

92 N.W. 798

DICKSON

v.DOWS (DOWS, Intervener).

Supreme Court of North Dakota.

Dec. 20, 1902.

Syllabus by the Court.

1. The interest in a matter in litigation which will authorize a person to intervene in an action under section 5239, Rev. Codes, must be such a direct and immediate interest that the person seeking to intervene will either lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action.

2. It is held that the complaint in intervention in this action does not disclose that the intervener has any interest in the matter in litigation, which is the foreclosure of a contract for the sale of land, or that he would gain or lose as a result of the judgment to be rendered in the action. The district court therefore erred in refusing to strike out its ex parte order permitting him to intervene.

Appeal from district court, Cass county; Charles A. Pollock, Judge.

Action by Kernahan Dickson against Elizabeth M. Dows. Edwin L. Dows, by H. W. Gearey, his guardian, intervened. From an order refusing a motion to set aside an order permitting the intervention, plaintiff appeals. Reversed.David R. Pierce and Newton & Smith, for appellant. Turner & Lee, for respondent.

YOUNG, J.

The plaintiff appeals from an order of the district court of Cass county refusing his motion to vacate and set aside an order previously made permitting Edwin L. Dows, an incompetent person, by H. W. Gearey, his guardian, to intervene in the action. The action is brought for the purpose of canceling and foreclosing a contract whereby the plaintiff, Kernahan Dickson, agreed to sell and convey to the defendant, Elizabeth M. Dows, 320 acres of farm land situated in Cass county, upon the crop-payment plan. The defendant answered the complaint, and at the same time Edwin L. Dows, through his guardian, H. W. Gearey, applied to the court, and was granted an ex parte order permitting him to intervene in the action, and in pursuance of such permission he served his complaint in intervention. Thereafter, upon the affidavit of plaintiff's counsel, an order was obtained directing the said intervener to show cause why the order permitting him to intervene should not be vacated and set aside, and his complaint stricken from the case. The plaintiff's motion was denied, and this appeal is taken from the order denying the same. The plaintiff'scomplaint alleges that the defendant has failed to comply with the terms of her contract of sale, and, among other things, that she failed to turn over to the plaintiff portions of the annual crop, as agreed in said contract, and also to pay certain taxes assessed against the premises, and prays for judgment in the sum of $1,229.57, and that a decree be entered to the effect that if that sum, or such sum as shall be found to be due by the court, with interest thereon, shall not be paid within 30 days after the date of the decree, all the right and interest of the defendant in and to said land under said contract shall terminate. It is not necessary to refer to the allegations of the answer, further than to say that it places all of the allegations in the complaint in issue. The complaint in intervention, and upon which the order of intervention was made, alleges that on the 1st day of June, 1892, the intervener purchased the premises in question from the estate of Charles M. Reed, deceased, “and that he immediately took possession of, and ever since and now is in possession of, said land”; that thereafter, on the 3d day of September, 1897, he executed and delivered to one William McDonald a quitclaim deed to said premises to secure an indebtedness of $356; that thereafter, and on the 7th day of January, 1898, for the purpose of procuring money to pay his indebtedness to McDonald, he borrowed $500 from the plaintiff, Kernahan Dickson, and gave his note therefor, and that as security for said note, and not otherwise, the said William McDonald and the intervener and his wife, Martha Dows, joined in a quitclaim deed to the plaintiff, which said deed was given for the purpose of security only; that thereafter, in the year 1899, the said intervener, with the approval of the county court of Cass county and of his guardian, entered into a contract with the plaintiff whereby the intervener procured a further sum of money for the purpose of paying the balance due upon the price of the land, and to redeem certain personal property which had been taken from him upon chattel mortgages; that the plaintiff then agreed, as soon as the title was received for the Reed estate, to enter into a contract with the intervener to convey the premises to him upon a repayment of the sum of $4,160 and interest, which said sum was to be paid by delivering to the plaintiff all of the proceeds of one-half of the...