Whitman v. Willis

• Decision Date: 01 January 1879
• Citation: 51 Tex. 421
• Court: Texas Supreme Court
• Parties: WALTER C. WHITMAN v. J. P. WILLIS & BRO.

51 Tex. 421

WALTER C. WHITMAN

v.J. P. WILLIS & BRO.

Supreme Court of Texas.

1879.

APPEAL from Washington. Tried below before the Hon. I. B. McFarland.

On May 28, 1875, Willis & Bro. filed suit for debt against James W. Whitman, proceeding by attachment and publication. Attachment was levied upon defendant's interest in two hundred and eighty-two acres of land. No answer was filed for defendant. At the appearance term, February 21, 1876, plaintiffs took a judgment by default against defendant, with a writ of inquiry. After this, on the same day, there was brought to the attention of plaintiffs a petition in intervention filed by Walter C. Whitman. Leave was given at this time to have it “filed as of the 16th,” and it is marked filed of that date. No leave to intervene had been asked or obtained from the court. No notice was given to the plaintiffs of the filing. As soon as the petition was brought to their notice, on the 21st, the plaintiffs filed exceptions to it, which were sustained.

The petition of intervention alleged, in substance, that the tract of land levied on was at the time of levy the property of W. C. Whitman, intervenor, by purchase from James W. Whitman on the 9th day of March, 1875; that he received a deed from same and procured its record March 15, 1875; that he went into possession and cultivated the land; that plaintiffs levied on the land, without intervenor's consent, as the property of James W. Whitman, and he feared a foreclosure of their attachment lien on said tract of land, which would cast a cloud on the title, interfere with the sale, &c.; that intervenor bought in good faith; and concluded with a prayer to be permitted to establish his title so as to prevent the proceedings in the suit from casting a cloud on the same.

The writ of inquiry was executed and a judgment final rendered against defendant on February 26, 1876.

W. C. Whitman assigned for error the action of the court in sustaining exceptions to his petition of intervention, and appealed.

Breedlove & Ewing, for appellant.--We refer the court to some of the decisions supporting the course pursued by appellant in intervening, beginning with the earlier volumes and running along through the current line of decisions to almost the latest volume of Texas reports. (6 Tex., 435; 13 Tex., 67;27 Tex., 154;33 Tex., 668;34 Tex., 125;35 Tex., 267;37 Tex., 88.)

Shepard & Garrett, for appellees.--Appellant had no right to intervene. He had no direct interest in the subject-matter of the suit. There was no privity in the issues made in the case and those presented in his petition. His title to the land, if any he had, could not possibly be affected or impaired by the levy upon whatever interest James W. Whitman had in it. Our courts have been very liberal in permitting intervention by third parties, but no one of the many decisions will show a case where an outsider has been permitted to come into a cause when he can be in no way directly affected by the proceedings therein. His contingent interest in the subsequent proceedings to enforce or make available the judgment that may be rendered, could not give such right. This would be opening the door too wide. “To entitle a party to intervene, he must show, by averment, that his rights are involved in the cause which is being litigated; that he is entitled to the relief which he asks; and his application must be presented in time to enable the parties in the cause in which he desires to intervene to meet and contest the issues which may be presented by the intervenor.” (Smith v. Allen, 28 Tex., 501;Legg v. McNeill, 2 Tex., 428;Van Bibber v. Geer, 12 Tex., 15;Eccles v. Hill, 13 Tex., 65.)

BONNER, ASSOCIATE JUSTICE.

The question in this case arises upon the judgment of the court below sustaining the demurrer to the petition of the appellant for intervention and in dismissing the same.

“The principle of the law of intervention is, that if any third person consider that his interest will be affected by a cause which is depending, he is not bound to leave the care of his interest to either of the litigants, but has a right to intervene or be made a party to the cause, and to take on himself the defense of his own rights, provided he does not disturb the order of the proceedings.” (2 Chit. Gen. Prac., 492, and authorities cited in notes.)

As a general rule, courts of law require no more than the persons directly and immediately interested in the subject-matter of the suit, and whose interests are of a strictly legal nature, to be made parties thereto. All persons who have merely an equitable or remote interest, are not only not required to be parties, but are excluded from being made parties; and if any are improperly joined, the fault may be fatal to the suit. (Story's Eq. Plead., sec. 76.)

At common law, in real actions a new party defendant could be made when the tenant in possession cited his landlord, or a lessee his lessor in warranty. (Legg v. McNeill, 2 Tex., 428.)

A section of our statute of trespass to try title goes beyond this, and provides that “when a tenant is sued for lands of which he is in possession, the real owner, or his agent or attorney, may enter himself on the proceedings as the defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action.” (Paschal's Dig., art. 5296.)

The general rule in courts of equity, as to parties, is that all persons materially interested in the subject-matter ought to be made parties, either as plaintiffs or as defendants, in order that complete justice may be done and a multiplicity of suits prevented. (Story's Eq. Plead., sec. 76 a.)

The practice of intervention as known to us, was unknown to the courts of law and equity of England, but was admitted under that name in the Ecclesiastical Courts. (2 Chit. Gen. Prac., 492, 493.)

It is derived from the civil law. (Bouv. Law Dict., title “INTERVENTION.”) From this source it probably descended to the Ecclesiastical Courts of England.

Through that channel, and the modification of the civil law as found in the State of Louisiana, and the practice of the courts of chancery, it has been ingrafted upon our system, which, according to the circumstances of the particular case, applies the rigid rules of the common law or the more flexible proceedings of equity. It rests upon the proposition that a party should be permitted to do that voluntarily which, if known, a court of equity would require to be done.

We have no statute upon the subject now in force, except that section of the act of trespass to try title above referred to; but article 1188 of the Revised Code of 1879, soon to take effect, provides that “the pleadings of an intervenor shall conform to the requirements of pleadings on the part of the plaintiff and defendant respectively, so far as they may be applicable.”

Although due regard should be had to the advantages of the proceeding by intervention in preventing a multiplicity of suits, yet we should also, as far as practicable, guard against its disadvantages. It is a practice liable to abuse, has a tendency to multiply the issues, imposes frequently great additional labor and responsibility upon the presiding judges below to properly present in the charge these issues to the comprehension of the jury, and tends to confusion in the trial of causes.

When the right to personal property levied upon is involved, it is, as a general rule, the proper practice to require parties to be confined to the more simple and less expensive mode of trial of right of property provided by statute. (Paschal's Dig., art. 5310; Vickery v. Ward, 2 Tex., 214;Carter v. Carter, 36 Tex., 693;Ferguson v. Herring, 49 Tex., 130.)

By repeated decisions of this court, when the title to real property is directly involved in a pending...