Yetzer v. Young

• Decision Date: 17 August 1892
• Citation: 52 N.W. 1054,3 S.D. 263
• Parties: Yetzer et al. v. Young, (Young, Intervener.)
• Court: South Dakota Supreme Court

3 S.D. 263

52 N.W. 1054

Yetzer et al.

v.Young, (Young, Intervener.)

Supreme Court of South Dakota.

Aug. 17, 1892.

Syllabus by the Court.

1. To entitle a party to intervene, under section 4886, Comp. Laws, the interest must be that created by a claim to the demand or some part thereof, or a claim to a lien upon the property or some part thereof, which is the subject of the litigation.

2. In an action by the holder of a chattel mortgage against the mortgagor for the possession of the mortgaged property, a mere judgment creditor, without lien by levy of execution or attachment, is not entitled to intervene for the purpose of showing the mortgage paid or fraudulent.

3. Where an execution is returned by the sheriff with his certificate showing a levy, and a release and restoration of the property because subject to chattel mortgage which the judgment creditor refused to pay, a second execution may be issued by the clerk, and section 5147, Comp. Laws, does not apply to such case.

4. Parol evidence of the sheriff is not competent to prove a levy, but, if such evidence is offered and received without objection, its incompetency is waived.

5. Where the intervener was allowed to show without objection that an execution was issued upon her judgment, levied upon the property the possession of which is the subject of the litigation between plaintiff and defendant, and that such property was then in the possession of the sheriff under such levy, the court ought not, after the evidence is all in and the trial closed, to strike out the evidence of such facts, either because incompetent or not pleaded, but should allow intervener's motion to amend her pleading to correspond with the facts proved.

Appeal from circuit court, Hand county; H. G. Fuller, Judge.

Action in claim and delivery by Joseph C. Yetzer and Austin D. Hill, as copartners as Yetzer & Hill, against Charles H. Young, as surviving partner of the copartnership firm of Childs & Young, defendant, and Libbie T. Young, intervener. The court dismissed the intervention, and directed a verdict for plaintiffs. Intervener appeals. Reversed.A. B. Melville, for appellant. G. C. Cooper and C. G. Hartley, for respondents.

KELLAM, P. J.

The facts in this case necessary to an understanding of the questions raised are as follows: Plaintiffs claim to be the owners, by assignment, of a chattel mortgage on a stock of goods. The mortgage was given by Childs & Young, a partnership, of which defendant, Charles H. Young, was, at the time of these proceedings, surviving partner. Default having been made in payment, as alleged by plaintiffs, and Young refusing to surrender the mortgaged goods under the mortgage, plaintiffs commenced an action, January 20, 1890, in claim and delivery for the possession of the goods, for the purpose of foreclosing their mortgage. Young gave bond, and retained possession of the goods. He answered, alleging full payment of the mortgage debt. In March, 1890, Libbie T. Young, the appellant herein, represented by affidavit to the court in which such action was pending that, on the 7th day of January, 1890, she recovered a judgment against Charles H. Young, as surviving partner of Childs & Young; that on said 7th day of January execution was issued thereon and levied upon the same stock of goods claimed by plaintiffs under their mortgage, then in the possession of said Young as such surviving partner; that the sheriff refused to sell said property under said execution and levy, unless appellant would first pay and satisfy the chattel mortgage of plaintiffs; that said stock, since the execution of the said mortgage thereon, had remained in the possession of said Childs & Young, and said Young as surviving partner, as aforesaid, and that said Young, as such surviving partner, had, with the knowledge and consent of the mortgagees therein, continued to sell said goods at retail in the usual course of trade, for his own use and benefit; and that said mortgage was fraudulent and void as against her judgment and execution. Upon such affidavit, and the presentation of her separate answer, the court made an order March 10, 1890, allowing her to intervene in said action and file and serve said separate answer. The answer set up the same matters as the affidavit, and further alleged that the mortgage was fully paid. To this answer plaintiffs replied, denying the allegation of payment, and all the allegations of fact as to the fraudulent character of the mortgage, and alleging that the intervener's judgment was obtained by her through fraud and collusion with defendant Young, and for the purpose of defrauding plaintiffs, and that there was no consideration therefor. The practice in this case does not seem to have been technically correct, but no rights appear to have been prejudiced thereby. Upon the trial, after the close of the evidence upon the issues made by the answer of Libbie T. Young, intervener, the court, on motion of plaintiffs, struck out all testimony in her behalf, and directed a verdict against her. To test the correctness of this ruling is the principal purpose of this appeal.

The first question presented is as to the qualifications of an intervener. Our statute respecting intervention, when and how it may take place, is the same as that of California, and practically like that of Minnesota and Iowa. Any person may intervene “who has an interest in the matter in litigation,-in the success of either party.” Section 4886, Comp. Laws. Appellant contends that as a simple judgment creditor she had such “an interest in the matter in litigation” as entitled her to intervene, the argument being that the object of plaintiffs' action was to get possession of the goods, to appropriate them to the payment of their alleged mortgage, and thus reduce and divert the fund out of which she might otherwise collect her judgment, and that she was directly interested in preventing this. The subject-matter of the litigation was plaintiffs' right to take the goods under their mortgage. It went only to the possession. In this question appellant could not be concerned, unless she had some interest in the goods that might be affected by such change of possession. We do not think appellant's interest as a general judgment creditor, either in the matter in litigation or in the goods, was sufficiently direct or immediate to entitle her to intervene. Upon this point the case of Horn v. Water Co., 13 Cal. 62, is instructive. Plaintiff brought suit upon a note and mortgage executed by the trustee of the defendant company. Certain creditors of the company intervened alleging fraud in the execution of the note and mortgage, and that they were void. In the supreme court petitions for intervention of such creditors only as had liens upon the mortgaged property were allowed; those showing no such liens were dismissed. In the opinion Field, J., says: “The petition of the creditor R. does not disclose any right on his part to intervene. It shows that he was a simple contract creditor, holding obligations against the company, but it does not show that any portion of them was secured by any lien upon the mortgaged premises. *** To authorize an intervention, therefore, the interest must be that created by a claim to the demand, or some part thereof, in suit, or a claim to a lien upon the property, or some part thereof, which is the subject of litigation.” In Gasquet v. Johnson, 1 La. 425, a particularly interesting case, because it is understood that our law of intervention came from the Civil Code of Louisiana, the action was upon a bill of exchange drawn by defendant. In p...