Glass v. Woodman

• Decision Date: 03 May 1915
• Docket Number: 4377.
• Parties: GLASS v. WOODMAN et al. [d]
• Court: U.S. Court of Appeals — Eighth Circuit

223 F. 621

GLASS v. WOODMAN et al. ^[d]

No. 4377.

United States Court of Appeals, Eighth Circuit.

May 3, 1915

E. H Gamble, of Kansas City, Mo., for appellant.

Irvin V. Barth, of St. Louis, Mo. (John S. Leahy and Walter H Saunders, both of St. Louis, Mo., on the brief), for appellees.

Before SANBORN and HOOK, Circuit Judges, and AMIDON, District Judge.

HOOK Circuit Judge.

This is an appeal from an order denying leave to intervene in a foreclosure suit. Some citizens and residents of the Dominion of Canada who held mortgage bonds of a railroad company of Missouri had brought suit in the court below to foreclose the mortgage. A receiver was appointed, the bonds were deposited with a special master of the court, and a decree of foreclosure and sale was rendered. In this situation the appellant, a citizen of Illinois, sought to intervene to assert and enforce against some of the complainants an unliquidated claim for damages for breach of contract. He averred in his proposed intervening petition that personal service of process could not be made on the complainants in the United States, and that they had no property in this country which he could subject to his claim, except their bonds in the possession of the special master and the corresponding interest in the decree of foreclosure; also that there were other creditors of the complainants who were similarly situated, for whose benefit, if they desired, his proceeding might inure. He prayed that the special master be ordered to hold the bonds in his possession subject to the decision of the issues between him and the complainants, that they be required to answer, and that he have judgment for his damages and a lien on their bonds and the proceeds, etc also that, if such relief be denied, he be then authorized to sue them in a state court and have foreign attachment of their property by garnishment of the special master.

The appellant claims a right to intervene because he would otherwise be without remedy. He cannot maintain an independent action at law in a court of the United States for the reason that complainants cannot be found for service, and foreign attachment, so called, is not a permissible instrument for initiating jurisdiction in those courts. Nor can he maintain an action by attachment in a state court where jurisdiction might be so acquired because the property to be reached is in custodia legis. But the right of intervention does not necessarily follow from the absence of other remedy. It is not permissible to load a case with collateral issues. An intervener should have some interest in or claim to the demand in suit, or some connection with, interest in, or lien upon the subject-matter of the litigation, and the appellant has none of these. He has no claim, legal or equitable, to the mortgage bonds, nor legal or equitable interest in or lien upon the property of the defendant company or the fund to be administered, nor is he interested as an unsecured creditor of the defendant with rights that might be affected by the foreclosure.

His unliquidated claim against complainants does not even appear to have grown out of or to have relation to any phase of the cause of action or the subject-matter in the court below. It is outside of and foreign to the litigation. In effect he asks the court to admit him to the suit to qualify him for intervention by taking cognizance of an extraneous claim ordinarily justiciable only at law and by creating for it a lien upon property of complainants in the court's possession. That...