Wightman v. Evanston Yaryan Co.

• Decision Date: 24 October 1905
• Parties: WIGHTMAN et al. v. EVANSTON YARYAN CO. et al.
• Court: Illinois Supreme Court

217 Ill. 371

75 N.E. 502

WIGHTMAN et al.

v.EVANSTON YARYAN CO. et al.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Branch Appellate Court, First District.

Action by the Northern Trust Company, against the Evanston Yaryan Company. Charles A. Wightman and others petition for leave to intervene. From a judgment of the Appellate Court, affirming an order dismissing the petition of intervention, Wightman and others appeal. Affirmed.

Lynden Evans, for appellants.

Isham, Lincoln & Beale, for appellees.

This is an appeal from the affirmance by the Appellate Court of an order dismissing the amended and supplemental petition of intervention by appellants, filed in an action begun by the Northern Trust Company, a corporation, against the appellee, the Evanston Yaryan company, a corporation, to foreclose a trust deed. The Yaryan Company, a corporation organized under the laws of this state, was engaged in the business of furnishing electric lights and hot-water heating service by means of wires, mains, and conductors in the streets of the city of Evanston, under authority of an ordinance of that city passed March 27, 1900. On January 10, 1901, the company made a mortgage or trust deed to the Northern Trust Company, trustee, covering all of its property and franchise, to secure bonds not exceeding $400,000 in amount, $189,000 of which were subsequently issued. On August 16, 1902, the trustee filed its bill in the superior court of Cook county to foreclose the mortgage or trust deed because of the nonpayment of the interest coupons which fell due the preceding July. On the same day the bill was filed the company filed its answer, admitting all of the allegations of the bill, and thereupon the court appointed a receiver and directed him to operate the plant until otherwise ordered.

Various intervening petitions were filed by appellants, who claimed to have unexpired contracts with the light and heating company for heat and light service to be furnished their residences. On March 17, 1903, pursuant to leave of the court granted, all of the appellants joined in filing one amended intervening petition, which was intended to and did supersede all petitions theretofore filed by any of them. This amended petition is voluminous, setting up many immaterial and unimportant facts and conclusions. For the purposes of this decision the following material allegations are deemed sufficient: It set up the incorporation with a capital stock of $2,500 and the subsequent increase of the same to $400,000, and alleged, upon information and belief, that no part of the increased capital stock had been paid. It also averred the execution of certain contracts between the company and petitioners, individually, for heat and light, covering periods of five years yet unexpired, and that the receiver had notified them that he would not furnish heat and light according to their respective contracts, and demanded higher rates. It further alleged that the bill to foreclose, and the answer thereto, were collusive, and that the stockholders of the company and the bondholders are largely the same persons, and that the company is not insolvent, and the foreclosure proceedings were instituted for the purpose of securing the cancellation of the contracts with the patrons of the company; that the company threatened to consent to the final decree of foreclosure. It prayed that the receiver be directed to carry out the contracts with petitioners, and that the court determine whether the foreclosure proceedings were collusive, and refuse to enter a decree by consent of the company.

On March 21, 1903, before any action was taken upon this amended petition, a decree of sale was entered as prayed in the bill to foreclose. On April 13, 1903, before the sale, appellants filed a motion to vacate this decree, and on the following day an order was entered denying the motion and dismissing appellants' petition. From that order they appealed to the Appellate Court, where the order was affirmed, and a further appeal has been prosecuted to this court.

WILKIN, J. (after stating the facts).

The only question presented for our decision by the assignment of errors is the ruling of the superior court in dismissing the petition and refusing to order the appellees to answer the same. No question is raised as to the decree of foreclosure and sale entered on March 21, 1903. If appellants had the claimed right of intervention, then the order of the superior court should be reversed; otherwise, it must be affirmed. The controlling question in the case is, have the appellants shown by their petition such an interest in the foreclosure proceedings as will entitle them to become parties thereto? If no such right is shown, then all the questions raised and discussed by counsel on their behalf become unimportant.

The right of intervention has been defined to be: ‘The admission, by leave of the court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto, for the protection of some right or interest alleged by him to be affected by such proceedings.’ 17 Am. & Eng. Enc. Law (2d Ed.) 180. Some of the states have adopted statutes authorizing intervention under certain facts and circumstances, under which persons having an interest in the matters in litigation in the success of either party, or an interest against both, are allowed to intervene. Mere interest in the matter in litigation under such statutes warrants intervention in actions at law. We do not understand that those statutes affect the rights of parties in suits in equity, where the distinction between law and equity is maintained. We have no statute extending the rights of parties to intervene, except in attachment cases where a stranger to the proceeding claims property attached. In this state, therefore, the right of intervention must be controlled by the general rules in equity as to the answer of the proper parties ‘In equity no one is entitled to be made on become a party to the suit unless he has an interest in its object. But it is the usual practice to permit strangers to the litigation claiming an interest in the subject-matter to intervene on their own behalf to assert the titles.’ 17 Am. & Eng. Enc. Law (2d Ed.) 183. The rule in the United States courts is that ‘persons who are not parties to a suit have no standing in court to enable them to file a petition in said suit. If they have any occasion to ask any relief in relation to the matters involved in said suit or to the proceedings therein, they must file an original bill. * * * Strangers to a cause cannot be heard therein, either by petition or motion, except in certain cases arising from necessity, as where the pleadings contained scandal against a stranger, or where the strangers purchase the subject of litigation pending the suit, and the like. * * * Creditors who are allowed to provedebts and persons belonging to the class on whose behalf a suit is brought are regarded quasi parties, and, of course, may have a standing in court.’ Anderson v. Jacksonville, etc., Railroad Co., 2 Woods, 628, Fed. Cas. No. 358; Drake v. Goodridge, 6 Blatchf. 151, Fed. Cas. No. 4,062;Shields v. Barrow, 17 How. 130, 15 L. Ed. 158;Page v. Holmes Burglar Alarm Tel. Pole (C. C.) 18 Blatchf. 118, 2 Fed. 330. This court said, in Marsh v. Green, 79 Ill. 385, speaking by the late Justice Walker: ‘As we understand the modern practice, any person feeling that he has an interest in the litigation may apply to the court and be permitted to intervene and become a party and have his rights passed upon on the hearing, and the court will permit him to become such party on a proper showing. He would, of course, not be permitted to intermeddle when he had no substantial interest in the subject-matter of the suit.’ And in Shannahan v. Stevens, 139 Ill. 428, 28 N. E. 804, Justice Scholfield, rendering the opinion, said: ‘Patrick Shannahan, having the right to be made a party to the bill, necessarily retained the right to move the court to...