Potlatch Lumber Co. v. Runkel

• Decision Date: 08 April 1909
• Citation: 16 Idaho 192,101 P. 396
• Parties: POTLATCH LUMBER COMPANY (a Corporation), Respondent, v. GEORGE RUNKEL, Respondent, and ELIZA J. RUNKEL, Intervenor and Appellant
• Court: Idaho Supreme Court

101 P. 396

16 Idaho 192

POTLATCH LUMBER COMPANY (a Corporation), Respondent, v. GEORGE RUNKEL, Respondent, and ELIZA J. RUNKEL, Intervenor and Appellant

Supreme Court of Idaho

April 8, 1909

INTERVENTION-CLAIMANT TO ATTACHED PROPERTY MAY INTERVENE.

1. Under the provisions of sec. 4111, Rev. Codes of this state which authorizes a third party to intervene who has "an interest in the matter in litigation, in the success of either of the parties, or an interest against both," the owner or claimant of property attached in an action for debt has such an interest against both parties to the main action as entitles him to intervene for the purpose of asserting his right and title to the attached property.

2. Under the statute of this state (sec. 4302, Rev. Codes), an attachment duly and regularly issued and levied becomes a lien on the property "as security for the satisfaction of any judgment that may be recovered." The attachment therefore, is such a provisional remedy as reaches out and lays hold upon the property by proceeding in rem and subjects it to the payment of the debt for the recovery of which the action was instituted.

3. The fact that the intervenor has some other and adequate remedy for the protection of his property and rights is no bar to his right to intervene. If he has any interest in the matter in litigation, or in the success of either of the parties, he has a right to intervene.

(Syllabus by the court.)

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

Action by the plaintiff against defendant for debt. Attachment issued. Eliza J. Runkel, claimant of the property attached asked leave to intervene. Application denied, from which she appeals. Reversed.

Reversed and remanded, with direction. Costs awarded in favor of the intervenor.

C. H. Lingenfelter, for Appellant.

If the plaintiff is successful in its cause of action and obtains its judgment, the property under attachment, the property of this petitioner, will be sold to satisfy the judgment under the sanction of the law as predicated upon the action of the Potlatch Lumber Company v. George Runkel, thus necessitating the petitioner bringing a suit, either to enjoin the sale, or after sale a suit to remove the cloud from her title, all of which would be rendered unnecessary were she allowed to intervene in the original suit and prove her title. This shows her "interest in the success of either of the parties." (Pittock v. Buck, 15 Idaho 47, 96 P. 212.)

Geo. W. Tannahill, for Respondent.

The interest mentioned in the statute which entitles the person to intervene in a suit between other parties must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. (Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569.)

The object of the intervention in this suit is to try out the title to the real estate sought to be held by the attachment in this action. This certainly would retard the suit, would be injecting a new suit, or an additional cause of action, and would be, in fact, a separate, distinct and additional trial. Such a proceeding is not authorized by the statute authorizing an intervention. (Hibernia Savings & Loan Co. v. Churchill, 128 Cal. 638, 79 Am. St. 73, 61 P. 278; Isaacs v. Jones, 121 Cal. 257, 53 P. 793, 1101.)

"In ordinary attachments, 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. The proper course, as a general rule, if they desire to set up their rights to the property, is to file a claimant's bond, or pursue the sheriff in an action in trespass." (Ryan v. Goldfrank & Co., 58 Tex. 356; Pool v. Sandford, 52 Tex. 621; Rodrigues v. Trevino, 54 Tex. 198; Williams v. Bailey (Tex. Civ. App.), 29 S.W. 834; Loving v. Edes, 8 Iowa 427.)

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

This is an appeal from a final order made by the district judge denying appellant's application and petition to intervene in an action entitled, Potlatch Lumber Co., Plaintiff, v. George Runkel, Defendant. The plaintiff commenced an action against the defendant, George Runkel, for the recovery of a money judgment in the sum of $ 739.65 as the purchase price of a lot of fruit boxes. The defendant answered admitting the purchase of the boxes, and pleading a separate defense and counterclaim. Subsequent to the issuance of the summons in the action, the plaintiff procured the issuance of a writ of attachment against the defendant's property, and thereupon had a tract of 160 acres of land attached as the property of the defendant but standing on the records in the name of Eliza J. Runkel, the wife of the defendant. After the levying of attachment, Mrs. Runkel, the appellant in this case, filed her petition and application, praying that she be allowed to intervene in the action and establish her right to the real estate attached, and have the cloud cast upon the same by the attachment removed. Appellant alleged in her petition that she was the wife of the defendant, George Runkel, and the absolute and sole owner of the tract of land attached, in her separate and individual right, and that her husband had no interest, right or claim whatever in or to the premises. She also alleged that she purchased the property wholly with her own money, received by her inheritance from her father's estate. It was further alleged that the attachment cast a cloud upon her title and would necessitate her maintaining a separate and independent action to remove such cloud if she were not allowed to intervene to show her right, title and interest to the attached premises. The district court denied her application and this appeal is prosecuted from that order.

The only question confronting us on this appeal is to determine whether or not the appellant has shown such "an interest in the matter in litigation, in the success of either of the parties, or an interest against both," as to entitle her to intervene and become a party to the further proceedings in the action.

Upon first impression, we were strongly inclined to believe that there was no merit in appellant's contention, but the more we have examined into the matter and considered the statute, as well as the nature of appellant's claim, the more we are convinced that appellant should have been permitted to intervene in this action for the purpose of having the cloud cast by the attachment removed from her property, provided she could establish the allegations of her complaint to the effect that she is the sole and absolute owner of the property in her own right. Our statute authorizing intervention is section 4111 of the Revised Codes, and is as follows:

"Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the ground upon which the intervention rests, filed by leave of the court, and served upon the parties to the action or proceeding who have not appeared and upon the attorneys of the parties who have appeared, who may answer or demur to it as if it were an original complaint."

This provision of our statute was copied from the California statute and is identical with section 387 of the California Code of Civil Procedure. (3 Kerr's Code, p. 431.) The California statute, in turn, was copied from Louisiana, and this is true with practically all the statutes of the middle and western states authorizing intervention. This remedy was not known at common law, but seems to be a product of the civil law, and had its origin in this country in Louisiana. (Hyman v. Cameron, 46 Miss. 725; note to Brown v. Saul, 16 Am. Dec. 177.)

The leading California case dealing with this statute is that of Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569. The opinion in that case was written by Justice Field, and the right which will authorize an intervention is there defined as follows: "To authorize an intervention, therefore, the interest must be that created by a claim to the demand, or some part thereof, in suit, or claim to, or lien upon, the property, or some part thereof, which is the subject of litigation." In support of this holding, Louisiana cases are cited. In the Horn case, the California court permitted judgment creditors having judgment lien against the property involved in the litigation to intervene and set up their respective rights.

The rights of third parties to intervene seem to have been frequent subjects of consideration before the supreme court of California immediately succeeding the adoption of this statute in 1854. In Speyer v. Ihmels, 21 Cal. 280, 81 Am. Dec. 157, and while Justice Field was still a member of the California supreme court, the question arose over the right of a subsequent attaching creditor to intervene in the suit of a senior attaching creditor and there to urge the fraudulent character of the senior attachment. The court in passing upon the interest, or, rather, the character of the interest, asserted by the intervenor, said:

"Although the intervenors have not a claim to or...