Houston Real Estate Inv. Co. v. Hechler

• Decision Date: 23 January 1914
• Docket Number: 2551
• Citation: 138 P. 1159,44 Utah 64
• Court: Utah Supreme Court
• Parties: HOUSTON REAL ESTATE INVESTMENT COMPANY et al. v. HECHLER (YERRICK INTERVENER)

138 P. 1159

44 Utah 64

HOUSTON REAL ESTATE INVESTMENT COMPANY et al. v. HECHLER (YERRICK INTERVENER)

No. 2551

Supreme Court of Utah

January 23, 1914

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by the Houston Real Estate Investment Company, a corporation and another, against L. L. Hechler, in which Carrie A Yerrick filed complaint in intervention, claiming the attached property.

Complaint in intervention dismissed. Intervener appeals.

REVERSED AND REMANDED, WITH DIRECTIONS TO REINSTATE THE COMPLAINT IN INTERVENTION.

Howat Macmillan & Nebeker, and Stephens, Smith & Porter for appellant.

APPELLANTS' POINTS.

The complaint in intervention alleges that the intervenor owns the property involved, and was in possession thereof until it was taken from her by the sheriff under the writ of attachment. Inasmuch as she claims to own the personal property which was the "matter in litigation," her interest is adverse to both the plaintiffs' and the defendant's, and therefore she clearly was entitled to intervene under all of the grounds given in Section 2925 Compiled Laws of Utah, 1907. (Wheelwright v. Nat'l Copper Bank, 42 Utah 579, 133 P. 132; State ex rel. Newell v. District Court, 37 Utah 418; 108 P. 1121; 11 Ency. Pl. & Pr. 496; Pomeroy Remedies & Rem. R. Section 423 et seq. and 439; Potlach Lumber Company v. Runkel, 23 L. R. A. (N. S.) 536.) Under the provisions of Section 2926 and general equitable principles all persons claiming an interest in the property were necessary parties and the court on objection should have ordered the intervenor to be made a party defendant in order to fully settle the rights and claims to the property involved. (Tiffany Land. & Ten. 1958--24 Cyc. 1278.) Therefore the right to intervene should be unquestioned. The plaintiffs' lien on the defendant's property existed from the beginning of the tenancy, or anyway from the time the property was taken on the premises, and the commencement of the action did not initiate any new right--it only preserved and sought to enforce the pre-existing rights by foreclosure of the lien. (18 Am. & Eng. Ency. Law, (2nd Ed.) 335; 24 Cyc. 1250.) Nor did the attachment create the lien, it is simply a means of holding the property until a determination of the plaintiffs' foreclosure. (State ex rel. Newell v. District Court, supra--Tiffany L. & T., page 1955; McKee v. Sims, 92 Tex. 514, 1 S.W. 564.) Section 2925 is taken from Section 387 California C. C. Proc., which was at an early date, prior to our adoption, liberally construed in favor of intervention when the intervenor has a direct interest in the matter in litigation and will gain or lose by the direct operation of the judgment. (Home v. Volcano Water Co., 13 Cal. 62, 72 Am. Dec. 569.) The fact that a party has another remedy does not affect his right to intervene. The right given under Section 2925 is cumulative not exclusive. (11 Ency. Pl. & Pr. 502; Cofbey v. Greenfield, 55 Cal. 382; Kimball v. Richardson K. Co., 111 Cal. 386; 43 P. 1111; Dennis v. Kolm, 131 Cal. 91; 63 P. 141; Potlatch Lumber Company v. Runkel, 23 L. R. A. [N. S.] 536.)

Geo. N. Lawrence and A. T. Sanford for respondents.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This action was commenced by the plaintiffs, respondents here, as lessors, against the defendant L. L. Hechler as their tenant to recover rent. A lessor's attachment was issued, and certain property was attached thereunder as the property of the defendant. One Carrie Yerrick, the appellant here, sought to intervene in the lessor's action upon the alleged ground that she is the owner of the attached property. The pleadings are very voluminous, covering thirty pages of the printed abstract. We shall not attempt to set them forth, even in condensed form. We shall, however, in the opinion refer to such parts to which we deem special reference necessary.

The action was based upon a claim for rent alleged to have been in arrears for a period exceeding seven months at the rate of $ 500 per month, amounting in the aggregate to the sum of $ 3594.97, and for attorney's fees in the sum of $ 500. Respondents prayed judgment "against the defendant for the sum of $ 3594.97," with legal interest, and for "$ 500 attorney's fees." They further prayed as follows: "Plaintiffs further pray that an attachment issue against the defendant under the provisions of chapter 4 of the Compiled Laws of Utah 1907, and that plaintiffs be adjudged to have a first lien upon all of the property of said defendant not exempt from execution, and for such other relief as is just." (Italics ours.)

Respondents' action is predicated on Comp. Laws 1907, sections 1407 to 1414, inclusive. Those sections, in substance, provide:

Sec. 1407. Lessors shall have a lien for rent due upon all the property of the lessee not exempt from execution so long as the lessee occupies the leased premises and for thirty days thereafter.

Sec. 1408. The lien is made superior to all other liens "excepting taxes, mortgages for purchase money, and liens of employees for services for one year next prior to the sale."

Sec. 1409. When any rent shall become due, or the lessee be about to remove his property from the leased premises, the lessor may apply to a court of competent jurisdiction "for a warrant to seize the property of such lessee."

Sec. 1410. "The lessor, his attorney, agent, or assigns shall, before the issue of such writ of attachment (warrant), file in the court aforesaid an affidavit . . . setting forth the amount of rent sued for over and above all offsets and counterclaims, and a brief description of the leased premises, and shall execute a bond conditioned," etc.

Sec. 1411. "Upon the filing of such affidavit and bond, it shall be the duty of the court wherein the same is filed to issue a writ of attachment to the proper person, commanding him to seize the property of the defendant not exempt," etc.

Sec. 1412. The officer shall "seize the property of such lessee not exempt from execution, or as much thereof as shall be of value sufficient to satisfy such debt, costs, and reasonable attorney's fee, and to keep the same until the determination of the action pending between the lessor and lessee," unless the property is sooner released as provided in the section.

Sec. 1413 is to the effect that the property may be released by the execution of a bond.

Section 1414. "All property, including growing and harvested crops and all ore mined or upon the premises, or so much of such property as may be necessary to pay the amount of rent due and costs, shall be liable to sale to enforce the payment of the lien hereby created."

Pursuant to the foregoing provisions respondents in connection with their complaint also filed an affidavit in the district court, and that court directed that the writ of attachment contemplated by the statute issue. Such a writ was accordingly issued directed to the sheriff of Salt Lake County, who duly executed the same by taking into his possession a large amount of furniture and household goods used in the building which was erected on the leased premises. The writ of attachment was levied on the 17th day of March, 1909, and on the 25th day of that month the intervener, appellant here, served a written demand upon the sheriff, demanding the return of the property taken by him under such writ to her; she claiming to be the owner thereof. Upon the demand being refused, she, after obtaining leave from the court, filed her complaint in intervention, in which she alleged that she was the owner of the attached property, and with great particularity pleaded the sources of her title. She also alleged the value of said property to be $ 7000, and, further, that some other parties claimed some interest therein whom she also asked to be made parties to the action. She prayed judgment that she be declared to be the owner of said property, and that, if possession thereof could not be given to her, she recover judgment against respondents for the sum of $ 7000, the alleged value thereof. Respondents demurred to the complaint in intervention upon two grounds: (1) That neither the intervener nor any of the parties mentioned in her complaint whom she alleged claimed some interest in the attached property were proper parties to the action; and (2) because the complaint of intervention did not state a cause of action against respondents, or either of them. The demurrer was, however, withdrawn, and the respondents answered the complaint in intervention. In their answer they set up much affirmative matter in defense to appellant's claims. The other parties named in the complaint in intervention also appeared and denied generally the allegations of said complaint. The defendant Hechler filed a general demurrer to respondent's complaint, which was overruled, and he made no further defense to the action. When the case was called for trial upon the complaint in intervention and respondents' answer thereto, they asked leave to amend the prayer of their complaint by striking therefrom that portion which we have italicized, and in connection therewith moved that the complaint in intervention be dismissed for the reason that the intervener had shown no right to intervene in the action. The court granted respondents' request to amend the prayer as aforesaid, after which he also granted the motion to dismiss the complaint in intervention, and entered judgment against the appellant, dismissing her complaint, and she alone appeals from the judgment.

The only errors assigned are:

That the court erred in granting leave to amend respondents' prayer as stated, and in dismissing the complaint in intervention. For the purposes of this decision we shall treat the...