Rhinehart v. Victor Talking Mach. Co.

• Decision Date: 14 May 1917
• Parties: RHINEHART v. VICTOR TALKING MACH. CO.
• Court: U.S. District Court — District of New Jersey

261 F. 646

RHINEHART v. VICTOR TALKING MACH. CO.

United States District Court, D. New Jersey.

May 14, 1917

McCarter & English, of Newark, N.J., for intervener.

French & Richards, of Camden, N.J., for defendant.

HAIGHT District Judge.

This is a motion to strike out the pleading filed by the intervener pursuant to the permission granted by the order of this court, made on the 19th day of February, 1917. The defendant has assigned 24 reasons why it should be stricken out. Many of them are, however, merely reiterations of others expressed differently. They present several questions, which will be separately discussed.

1. The intervener bases his right to intervene on rule 37 of the Supreme Court (198 F. xxviii, 115 C.C.A. xxviii), alleging that he has an interest in the litigation between the plaintiff and the defendant. At the time the order permitting the intervention, was entered, I considered that the intervener should file some formal pleading, other than the petition upon which the order was made, setting up his interest or right, and to which both the defendant and the plaintiff could plead, so that the issues could be properly framed. He has attempted to carry out this direction by filing what he has termed a 'supplemental bill.'

It is first objected by the defendant that the matters set up therein will not support what is commonly known to equity practice as a 'supplemental bill.' I think that this position is undoubtedly correct; but, as counsel for the intervener contends, the name given to the pleading is of little or no importance, provided that the pleading itself properly sets forth the intervener's right or interest in the litigation, and is drawn so that it may be answered by any of the parties entitled to answer it. While it is undoubtedly the general rule in equity that all persons materially interested, either legally or beneficially, in the subject-matter of a suit, are to be made parties to it, so that there may be a complete decree, binding upon them all, and that a court will, sua sponte, dismiss a bill, if it appears that to grant the relief prayed for would injuriously affect persons interested in the matter, who are not parties to the suit (Minnesota v. Northern Securities Co., 184 U.S. 199, 235, 22 Sup.Ct. 308, 46 L.Ed. 499), it is also the rule, with one or two exceptions, that a stranger cannot be admitted, on his own motion, as a party to a pending suit, without the plaintiff's consent, unless there be a statute enabling him to do so (Shepard v. N. J. Consolidated Water & Light Co., 73 N.J. Eq. 583, 74 A. 140; French v. Gapen, 105 U.S. 509, 525, 26 L.Ed. 951).

Equity rule 37 of the Supreme Court, of course, has the same effect as a statute. Hence the general equity practice affords no precedents for the exact method by which the intervener is to assert his rights, or the form or designation of the pleading by which this is to be done. Nor is there any well-defined practice in these respects, in the states where the statutes permit intervention. It is clear, however, that there must be some formal pleading, and that it should set forth facts sufficient to entitle the intervener to intervene and to the relief prayed for, and that the rules applicable to pleadings in general apply with equal force to a pleading in intervention. See 14 Stand. Encyc. of Procedure, 321 et seq. In Leary v. U.S., 224 U.S. 567, 32 Sup.Ct. 599, 56 L.Ed. 889, Ann. Cas. 1913D, 1029, the pleading by which the intervener sought to assert her rights was spoken of as 'the bill of intervention.'

As the intervener's rights in this case are those of a plaintiff, I think that his pleading, likewise, may be properly designated as a 'bill of intervention.' As such, it undoubtedly should call for an answer from, and be filed against, the complainant, as well as the defendant. As it does not do so, it is defective in this particular at least. Consequently the motion to strike it out must prevail on this ground, if upon no other. This conclusion makes it really unnecessary to decide any of the other questions. As, however, I think the intervener should be permitted to file an amended pleading, and as those questions will undoubtedly arise again, I have deemed it proper to give my general views on them.

2. It is urged now, as it was at the time the permission to intervene was granted, that upon the face of the pleading the intervener has no such interest in the subject-matter of the litigation as would justify his admission as a party thereto. I had thought that this phase of the case was settled, so far as I could settle it, at the time the order before mentioned was made. However, I have re-examined the question, and considered it more carefully than I was able to at the time I made the order. The view which I entertained at that time has in no respect been shaken. Undoubtedly 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, before he should be permitted to intervene. Glass v. Woodman, 223 F. 621, 622, 139 C.C.A. 167 (8th Cir.); Smith v. Gale, 144 U.S. 509, 517, 519, 12 Sup.Ct. 674, 36 L.Ed. 521. As before stated, this interest must undoubtedly be set up in the bill of intervention, in the same manner as would be required if the bill were an original one, except as hereinafter mentioned. The 'supplemental bill' is not open to any objection in this latter respect. The important question is whether the facts set forth therein demonstrate that the intervener has such an interest in the litigation as, within the rule before mentioned, entitles him to intervene.

The contract between the plaintiff and the intervener, upon which the latter bases his interest in the litigation, undoubtedly constitutes either an equitable assignment of one-half of any moneys which the plaintiff may recover in this litigation, or its effect is to create an equitable lien thereon. It answers all of the requirements stated by Judge Rellstab, in In re Stiger (D.C.) 202 F. 791, affirmed 209 F. 148, 126 C.C.A. 96, to be necessary for a valid equitable assignment. It makes a present appropriation of a part of the fund to be recovered in the suit, and is not, under any permissible construction, a mere promise to pay out of a particular fund. See, also, 3 Pomeroy's Equity Jurisprudence (3d Ed.) Sec. 1280. In addition, if by any possibility the construction before mentioned is not a proper one, there would seem to be no doubt, under the United States Supreme Court decisions, but that the agreement creates an equitable lien upon any fund which may be recovered by the plaintiff in the suit. If it could be considered that there was merely an agreement to pay, as distinguished from a present transfer, the contract unquestionably indicates an intention on the part of both parties to make the fund to be recovered in this suit a security for the obligation to pay one-half thereof to the intervener, and thus would create an equitable lien thereon. Ingersoll v. Coram, 211 U.S. 335, 368, 29 Sup.Ct. 92, 53 L.Ed. 208; Barnes v. Alexander, 232 U.S. 117, 34 Sup.Ct. 276, 58 L.Ed. 530; Wylie v. Coxe, 15 How. 415, 419, 14 L.Ed. 753; McGowan v. Parish, 237 U.S. 285, 35 Sup.Ct. 543, 59 L.Ed. 955.

That part of the opinion in Trist v. Child, 21 Wall. 441, 447, 22 L.Ed. 623, which is cited by counsel for the defendant, was disapproved, as respects equitable liens, by the Supreme Court in Barnes v. Alexander, supra. The before-mentioned remarks in the former would seem to be applicable to an equitable assignment, as distinguished from an equitable lien. Having an equitable assignment of, or an equitable lien upon, part of the fund now in court, it is difficult to conceive why the intervener has not such an interest in the litigation as is contemplated by the Thirty-Seventh Supreme Court rule. Nor can I see how the fact that this right or interest accrued prior to the institution of the suit makes any difference on this point. I have not considered, on this phase of the case, the effect of the release set up in the defendant's supplemental answer to the original bill.

3. It is next insisted that the agreement upon which the intervener's rights are based is invalid under the rule against champerty and maintenance. On this phase of the case there is nothing in the 'supplemental bill' to indicate where the contract was made, or where it was to be performed, except possibly that, as the defendant is a New Jersey corporation, it may be fairly gathered that the parties contemplated that the agreement would be performed in the state of New Jersey. The English doctrine and statutes regarding champerty and maintenance have not been adopted as the law of New Jersey. Schomp v. Schenck, 40 N.J.Law, 195, 29 Am.Rep. 219; Bouvier v. Baltimore & N.Y.R.R. Co., 67 N.J.Law, 281, 291, 51 A. 781, 60 L.R.A. 750; Bigelow v. Old Dominion, etc., Co., 74 N.J. Eq. 457, 490, 71 A. 153. Nor is it by any means clear that they are in force in the state of Pennsylvania, where, it is...