Wightman v. City of Wayne

• Decision Date: 15 March 1946
• Docket Number: 32057.
• Parties: WIGHTMAN v. CITY OF WAYNE (HENDRICKSON, Intervener).
• Court: Nebraska Supreme Court

22 N.W.2d 294

146 Neb. 944

WIGHTMAN v. CITY OF WAYNE (HENDRICKSON, Intervener).

No. 32057.

Supreme Court of Nebraska

March 15, 1946

Syllabus by the Court.

1. Under the statute the right of a party to intervene in an action is absolute, subject only to the condition that he exhibit a pleading containing allegations which demonstrate a right in the subject matter being litigated.

2. Any party has the right to question the right of intervention in a case to which he is a party.

Mark J. Ryan, of South Sioux City, for appellant.

H E. Siman, Russell W. Bartels, and Fred S. Berry, all of Wayne, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, and CHAPPELL JJ.

YEAGER Justice.

This is an action by plaintiff against the defendant wherein plaintiff seeks a declaratory judgment decreeing the rights of plaintiff and defendant to the proceeds of sale of certain real estate in the city of Wayne, county of Wayne, Nebraska title to which is in plaintiff. The plaintiff filed a petition and an amended petition in the case. C. H Hendrickson filed a petition of intervention to which objection was interposed by plaintiff. The objections were sustained and the petition of intervention dismissed. From the order dismissing the petition of intervention intervener has appealed. The proceeding here is between plaintiff who is appellee and intervener who is appellant.

The errors assigned and requiring consideration herein are that the court erred in denying the right to intervene and in dismissing the petition; and that the plaintiff was without right to question the right of intervention.

In order to arrive at a proper determination of the questions presented it becomes necessary to recite the background of the present case as disclosed by the petition and the opinions in Taxpayers' League v. Wightman, 139 Neb. 212, 296 N.W. 886, and Wightman v. City of Wayne, 144 Neb. 871, 15 N.W.2d 78, which opinions are referred to in the petition.

On or about March 18, 1932, in an action by the city of Wayne a tax foreclosure decree was entered foreclosing tax liens on Lots 1, 2, and 3, Block 6, Crawford & Brown's Addition to the city of Wayne, Wayne County, Nebraska. By the decree one Alice V. Lewis was awarded a first lien for $235.72 and the city of Wayne a second lien for $2,713.76. On October 19, 1936, a sale was made under the decree to Walter S. Bressler, city clerk of the city of Wayne, for $4,600. No money was paid. Title under the deed was held in trust for the city. In June 1938 appellee started negotiations with the city for the purchase of the lots. A price was agreed upon which was $1,500. However, there was the outstanding lien of Alice V. Lewis and a right of redemption which did not expire until October 19, 1938. A deed was secured from the titleholder and the lien of Alice V. Lewis was paid off. Thereafter on October 5, 1938, at the request of the city of Wayne a deed was issued by Walter S. Bressler to appellee.

The purchase price was $1,500. Immediately appellee entered into possession and erected improvements costing $8,500.

Thereafter an action was instituted in which appellant herein, as a citizen and taxpayer, sought to have the deed from Bressler to appellee set aside as a fraud upon him and the other taxpayers of the city. The case reached this court where it was disposed of by opinion in Taxpayers' League of Wayne County v. Wightman, 139 Neb. 212, 296 N.W. 886. This court in the opinion held that the transaction was fraudulent and set aside the deed from Bressler to the appellee herein and the sale to Bressler under the foreclosure decree. The effect of this was to restore to the city its lien declared in the original tax foreclosure decree.

Following the decision of that case an action was filed in the district court for Wayne County by plaintiff herein against the defendant herein, the purpose of which was to require the city to convey to plaintiff title to the lots in question free and clear of the liens of the tax foreclosure decree. Appellant herein intervened and defended against the claim for relief. That case reached this court as Wightman v. City of Wayne, 144 Neb. 871, 15 N.W.2d 78. The relief prayed was denied.

This action was thereafter instituted and the purpose is to have the court declare that the lien of the tax foreclosure decree attaches to the three lots but not to the improvements erected thereon by appellee and that when sale is had that the proceeds be distributed in the proportions that the land and the improvements bear to the sale price.

It is against this claim for relief that appellant seeks to defend, as a citizen and a taxpayer, as is disclosed by the petition of intervention.

The appropriate statute on intervention is the following: 'Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to an action, or against both, in any action pending or to be brought in any of the courts of the State of Nebraska, may become a party to an action between any other persons or corporations, either by joining the plaintiff in claiming what is sought by the petition, or by uniting with the defendants in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the action, and before the trial commences.' Sec. 25-328, R.S.1943.

It is clear from this and the interpretative decisions that the right to intervene is absolute.

In the syllabus of In re Keller's Estate, 101 Neb. 115, 162 N.W. 511, it is said: 'Since the amendment of 1887, appearing...