Pittock v. Buck

• Decision Date: 29 May 1908
• Parties: T. RALPH PITTOCK, Respondent, v. STOREY BUCK, Administrator of the Estate of JOHN W. PITTOCK, Deceased, Respondent, and STELLA PITTOCK, Appellant
• Court: Idaho Supreme Court

96 P. 212

15 Idaho 47

T. RALPH PITTOCK, Respondent, v. STOREY BUCK, Administrator of the Estate of JOHN W. PITTOCK, Deceased, Respondent, and STELLA PITTOCK, Appellant

Supreme Court of Idaho

May 29, 1908

OPENING DEFAULT-PARTY IN INTEREST-INTERVENTION-WHEN MAY BE HAD.

1. An application to open a default is addressed to the sound discretion of the trial court, and the order of the court will not be reversed on appeal unless it clearly appears that the court abused its discretion; and in determining the question of discretion, the power of the court should be freely and liberally exercised under the statute to mold and direct its proceedings, so as to dispose of cases upon their substantial merits.

2. Where a party plaintiff, in an action for a divorce and to enjoin the sale and disposition of the community property applies to the district court, in an action then pending in said court wherein a third party is plaintiff and the defendant in the divorce proceeding is defendant, for leave to intervene in said action, and alleges as ground that the suit is collusive and fraudulent and without any foundation in fact, and if allowed to proceed to judgment will result in a sale of the property attached (which is community property), and the court inquires in the presence of counsel for plaintiff as to the time required to intervene and is advised by the applicant of the time required, and the petitioner relies upon the statements made by the court, as to the time during which no further proceedings will be taken in said suit, such facts are sufficient to authorize a judgment entered by default before such time expires to be opened and set aside.

3. A wife, who is plaintiff in a proceeding for divorce, may intervene in an action brought by a third party against her husband for debt, upon showing that such latter suit is collusive and fraudulent and brought for the purpose of defeating the wife's right to her interest in the community property and subjecting to sale property attached in said suit, which otherwise will be distributed as community property in the divorce proceeding, provided said application is made within the time fixed by the statute, and it is error for the trial court to deny the application to intervene.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.

An application to open a default and permit the plaintiff in a divorce proceeding to intervene and defend in an action brought by a third party against her husband, the defendant in such divorce proceeding. Order denied. Reversed.

Reversed. Costs awarded to appellant. Rehearing denied.

Geo. W Tannahill, for Appellant.

Appellant has a right of intervention under sec. 3177 of the Code of 1901, which is the same as that of California. (Horn v Volcano Water Co. etc., 13 Cal. 70, 73 Am. Dec. 569; Taylor v. Adair, 22 Iowa 279; Stich v. Dickinson, 38 Cal. 608; Brown v. Saul, 4 Martin, N. S. (La.), 434, 16 Am. Dec. 175; Pool v. Sanford, 52 Tex. 621; Del Rio Bldg. etc. Assn. v. King, 71 Tex. 729, 12 S.W. 65; Weston v. Weston, 46 Wis. 130, 49 N.W. 834.)

The right of a married woman to become by intervention a party to a suit affecting her separate property has been recognized. ( Cullers v. James, 66 Tex. 494, 1 S.W. 314; Gribble v. Haynes, 22 La. Ann. 141; Wallace v. Fenberg, 46 Tex. 35; United States v. Neely, 146 F. 764; Gund v. Parker, 15 Wash. 393, 46 P. 408; Stoddart v. McMahan, 35 Tex. 267- 300.)

Where intervention is permissible, any person claiming title or interest in attached property may intervene in the case. (14 Cyc. 798, and cases cited; Picket v. Garrison, 76 Iowa 347, 14 Am. St. Rep. 220, 41 N.W. 38.)

Charles L. McDonald, for Respondent.

It affirmatively appears from the record that the petition in intervention filed by Stella Pittock was not presented to the court, and no application to intervene was made until after the rendition and filing of the judgment against John W. Pittock. Our statute on intervention states, "Any person may before the trial intervene in an action or proceeding." (Sec. 3711, C. C. P.; Pomeroy's Code Rem., 4th ed., sec. 320; Safely v. Caldwell, 17 Mont. 184, 52 Am. St. Rep. 693, 42 P. 766; Owens v. Colgan, 97 Cal. 454, 32 P. 519.)

In ordinary attachment suits third parties claiming only an interest in the property attached and not in the subject matter of the suit cannot intervene in the main action for the purpose of asserting their rights to the attached property. (Ryan v. Goldfrank, 58 Tex. 356; Pool v. Sanford, 52 Tex. 621; Rodrigues v. Trevino, 54 Tex. 198; Williams v. Bailey (Tex. App.), 29 S.W. 834; Loving v. Edes, 8 Iowa 427.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

On October 2, 1907, Stella Pittock filed an action for divorce against her husband, John W. Pittock, in which action the Commercial Trust Company, a corporation, and T. Ralph Pittock were made defendants. In this action, the court issued a restraining order, restraining the defendants from in any manner selling or disposing of the real or personal property belonging to the defendant John W. Pittock, including 4,985 shares of stock in the Potvin-Pittock Company, Limited, represented by Certificate No. 2. Afterward, and while said divorce proceeding was pending, on November 20, 1907, T. Ralph Pittock, one of the defendants in the former action, commenced an action against John W. Pittock, his codefendant, for debt, and caused an attachment to be issued and levied upon said shares of stock. On December 2d a demurrer was filed to the complaint of T. Ralph Pittock v. John W. Pittock by D. E. Hodge, and on the same day it was overruled and judgment entered and filed in said cause. On December 5th, counsel for plaintiff Stella Pittock moved the court to open and set aside the default rendered in the case of T. Ralph Pittock v. John W. Pittock, on the ground that Stella Pittock was the wife of John W. Pittock and had an interest in the community property levied upon under said writ of attachment, and on the further ground of surprise and excusable neglect. On December 7th Stella Pittock also filed a motion to intervene in said cause upon the ground that she is the wife of John W. Pittock and living separate and apart and maintaining herself, and has instituted divorce proceedings against said John W. Pittock, and procured an injunction restraining the disposition of any community property, and on the further ground that the property attached, to wit, 4985 shares of the capital stock of the Potvin-Pittock Company, Ltd., was her sole and separate property, and that said suit was collusive and not founded upon any indebtedness whatever, and brought for the sole purpose of defeating her right and interest in the community property. Both of these motions were denied by the court, and this appeal is from the order denying the same.

The motion to open the default was based upon the record in the case, and upon the affidavit of George W. Tannahill and Stella Pittock. Mr. Tannahill in his affidavit, among other things, recites that, before the judgment was rendered in the case of T. Ralph Pittock v. John W. Pittock, he appeared in court in the presence of counsel for T. Ralph Pittock and asked permission to intervene in said cause upon behalf of Stella Pittock, and that the court inquired as to the time necessary for him to file his petition in intervention and he informed the court that he would be able to intervene on Thursday, December 5th, and, as he remembered, the court stated no further action would be taken until that time; that on the 2d day of December, 1907, a demurrer was filed in said case of T. Ralph Pittock v. John W. Pittock by D. E. Hodge, an attorney who had his office with and occupied the same rooms as Charles L. McDonald, the attorney for T. Ralph Pittock; that the demurrer was overruled on the same day and counsel for defendant declined to plead further, and judgment was rendered and entered upon said debt without any knowledge or notice to Stella Pittock or her counsel.

It is further shown by the affidavit of Stella Pittock that, in her opinion, the judgment was taken for the purpose of depriving her of her right to intervene, and for the purpose of subjecting the community property of herself and John W. Pittock to the payment of the claim of T. Ralph Pittock when the same had no foundation in fact, and was collusive, fraudulent and set forth for the purpose of defrauding said Stella Pittock of the community property.

The first question presented to this court is whether or not Stella Pittock made such a showing as entitled her to have the default entered against her husband John W. Pittock set aside. Rev. Stat., sec. 4229, provides among other things that a party may be relieved "from a judgment, order or other proceeding taken against him through his mistake inadvertence, surprise, or excusable neglect." It clearly appears in this case that counsel for Stella Pittock appeared in the district court and asked permission to intervene in the case of T. Ralph Pittock v. John W. Pittock before judgment had been entered in said cause, and he alleges that, "to the best of his recollection, the court gave him until December 5th, 1907." This statement in the affidavit is not contradicted. Neither is there any showing contradicting the allegation in the plaintiff's affidavit that he relied upon the proceedings in the district court, and for that reason did not make his application to intervene prior to the time judgment was entered in said cause. It appears clearly that counsel for Stella Pittock was acting in good faith and was speedily attempting to have Stella Pittock made a party to that proceeding,...