State ex rel. Westlake v. District Court of First Judicial Dist. in and for Lewis and Clark County

• Decision Date: 23 March 1946
• Docket Number: 8655.
• Citation: 167 P.2d 588,118 Mont. 414
• Parties: STATE ex rel. WESTLAKE et al. v. DISTRICT COURT OF FIRST JUDICIAL DISTRICT IN AND FOR LEWIS AND CLARK COUNTY et al.
• Court: Montana Supreme Court

167 P.2d 588

118 Mont. 414

STATE ex rel. WESTLAKE et al. v. DISTRICT COURT OF FIRST JUDICIAL DISTRICT IN AND FOR LEWIS AND CLARK COUNTY et al.

No. 8655.

Supreme Court of Montana

March 23, 1946

Rehearing Denied April 22, 1946.

Original proceeding by the State of Montana, on the relation of Lowell B. Westlake and others, against the District Court of the First Judicial District of the State of Montana, in and for the county of Lewis and Clark, and Honorable A. J. Horsky one of the judges thereof, for a writ of supervisory control requiring respondents to set aside an order striking relators' petition to intervene in an action for declaratory judgment determining that imposition of license fees on sellers of oleomargarine by Rev.Codes 1935, § 2620.45 is unconstitutional.

Writ issued. Stanley R. Foot and Arthur P. Acher, both of Helena, for respondents.

JOHNSON, Chief Justice.

Relators seek a writ requiring respondents district court and judge thereof to set aside an order striking plaintiff's complaint in intervention from the files in the action entitled O. L. Brackman, Plaintiff v Albert H. Kruse, Commissioner of Agriculture of the State of Montana, and Thomas E. McMasters, Dairy Commissioner Defendants.

That action was brought for a declaratory judgment determining that the imposition of license fees on sellers of oleomargarine by section 2620.45, Revised Codes, is unconstitutional and void.

The relators' petition to intervene was accompanied by their tendered complaint in intervention; an order was made exparte permitting the intervention and directing the filing and service of the complaint in intervention, which included an answer to plaintiff's complaint, the interveners joining with the defendants in resisting plaintiff's contentions. On the following day the plaintiff filed both a motion to strike the complaint in intervention and a demurrer to that complaint. His motion was thereafter granted by the trial court on the ground 'that the interest of the interveners is not the direct and immediate interest in the matter in litigation contemplated by section 9088, Revised Codes of 1935, and further that interveners' interests are already adequately represented by the original defendants.' In other words, the court's conclusion was that the relators were not properly entitled to be heard as parties to the action, whatever the merits of their tendered complaint in intervention might be.

For reasons stated below, it is unnecessary to discuss the allegations of the complaint, the answer, the petition for leave to intervene, and the complaint in intervention.

This court said in State ex rel. Thelen v. District Court, 93 Mont. 149, 17 P.2d 57, 59: 'By section 9088 it is provided that 'an intervention * * * is made by complaint, setting forth the grounds 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.' This statute contemplates that two things must occur in accomplishing an intervention. The first is that there shall be filed a petition asking leave to intervene. If leave be granted, the complaint must then be filed. The first can be filed as matter of course the second only upon leave of court. The better practice is to serve a copy of the complaint in intervention with the petition asking leave to intervene, and if leave is granted, the complaint should be filed forthwith.

'We think, however, that petitioner should not have been denied the right to intervene for failure to tender a complaint in this case. The petition asking leave to intervene stated facts sufficient to show petitioner's interest in the property, and showed the grounds upon which the intervention rests. It gave the adverse party as much information in that regard as could a complaint filed upon leave of court.'

In other words, while it is regarded as the best practice to serve and tender the proposed complaint in intervention along with the application for permission to intervene, and if so served and tendered the complaint in intervention may be considered with the application upon the issue of the right to intervene, it is no necessary part of that application, its chief mission being as a pleading in the main action, after intervention granted.

An order permitting intervention may be vacated on motion where permission to intervene should not have been granted. 47 C.J. 114, § 218. This is particularly true under statutes like ours, which permit the allowance of intervention without the requirement of a prior hearing upon notice to the litigants; for no other remedy is available. Manifestly, however, a motion directed against the petition and order of intervention is something quite different from a motion or demurrer directed against the complaint in intervention itself; for the first attacks the propriety of the existence of the complaint in intervention and of its consideration by the court, while the second regards it as before the court as a pleading in the main cause and attacks its sufficiency as such. That they are entirely separate matters is manifested by this court's holding, in Burgess v. Hooks, 103 Mont. 245, 62 P.2d 228, 229, that 'the order granting leave to intervene is, of course, without prejudice to any objection that may be made to the sufficiency of the pleading filed under the order.' It is also made clear by the holding in the same case that 'after intervention, the intervener's rights are as broad as those of the other parties to the action' and the holding in State Bank of New Salem v. Schultze, 63 Mont. 410, 209 P. 599, 603, that 'from a reading of the statute, it was clearly the legislative intent that the ordinary rules of pleading shall apply to a complaint in intervention; for, after making provisions for the service thereof, it requires that parties to the original action may answer or demur to the intervener's complaint as if it were an original complaint.'

By plaintiff's motion he questioned the relators' right to intervene and thus the court's jurisdiction to hear them as interveners, but by his demurrer to the complaint in intervention he must be held to have assented to that jurisdiction by tendering to the court the issue of law whether that pleading stated facts sufficient to constitute a cause of action.

In State ex rel. Bingham v. District Court, 80 Mont. 97, 257 P. 1014, 1015, the relator sought a writ of supervisory control to compel the District Court, in an action in which she was a defendant, to grant her motion to strike an amended and supplemental complaint from the files upon the ground that it had been filed without valid order of court. Her pertition showed that at the time of serving and filing her motion to strike that pleading she served and filed also a demurrer to it.

This court unanimously held that the objection raised by her motion 'challenges the jurisdiction of the court over the person of the defendant, may be waived, and is saved only by appearing specially for the purpose of urging it. Schilling v. Reagan, 19 Mont. 508, 48 P. 1109; Hinderager v. MacGinniss, 61 Mont. 312, 202 P. 200'; that the filing of her motion 'constituted a special appearance only and extended the time for making her appearance on the merits until the motion was determined (section 9322, Rev.Codes 1921; Missoula Belt Line Ry. Co. v. Smith, 58 Mont. 432, 193 P. 529), and having so appeared, counsel was required to do nothing further until the court ruled upon his motion except to 'keep out of court for all other purposes' (Hinderager v. MacGinniss, above; Gravelin v. Porier, 77 Mont. 260, 250 P. 823)'; that 'the filing of a demurrer constitutes a general appearance, vesting the court with jurisdiction over the person of the demurrant (McKiernan v. King, 2 Mont. 72; Butte Butchering Co. v. Clarke, 19 Mont. 306, 48 P. 303) and operates as a waiver of the objection to such jurisdiction ( Sanders v. Farwell, 1 Mont. 599; Collier v. Erwin, 3 Mont. 142; Smith v. Franklin Fire Ins. Co., 61 Mont. 441, 202 P. 751; Hinderager v. MacGinniss, above)'; that 'when counsel appeared generally for his client, though he was not required at the time to do so, he waived her objection to any defects in the pleading attackable only by motion (31 Cyc. 725), in spite of the fact that he filed her notice of motion at the same time.'

In that case an attempt had been made to preserve the effect of the special appearance by the statement in the demurrer that the right to rely upon defendant's motion to strike was expressly reserved, thus demonstrating that there was no intent to waive the motion; but this court said: 'It may be that, to say that a party 'waives' such objections by any act constituting a general appearance is not a technically accurate statement, as a 'waiver' is 'the intentional relinquishment of a known right' (27 R.C.L. 904), and to constitute a waiver of a right there must have been an intention to waive (In re Estate of Nix, 66 Mont. 559, 213 P. 1089), but the statutes and the authorities declare that by taking certain action in a cause a party is 'deemed' to have waived, not the right to object to defects in pleadings or service, but the defects; it might be more accurate to say that the party is, by this act, barred from thereafter raising an objection to such defects, but the result is the same and the law on the question is well settled. The law declares that, by his act, a party is 'deemed' to have waived the defects and the so-called waiver depends, not on the intention of the party, but upon his actions. Thus in State ex rel. Mackey v. District Court, 40 Mont. 359, 106 P. 1098, 135 Am.St.Rep. 622, it was held that where an attorney appeared...