SPEYER v. IHMELS & CO., 21 Cal. 280

Norton, J. delivered the opinion of the Court Court Field, C. J. concurring. This is a case arising under the provisions of the Civil Practice Act relative to interventions. 'On the tenth of January, 1861, the plaintiff commenced his action, and caused an attachment to be levied upon the property of Ihmels & Co. On the same day Eggers & Co. commenced an action against the same defendants, and caused an attachment to be levied upon the same property, but subsequent to the plaintiff’s levy, and in due course obtained judgment. On the day previous E. L.

Goldstein had commenced an action against the same defendants, and caused an attachment to be levied upon the same property, but also subsequent to the plaintiff’s levy. Before a default was entered against the defendants in this action, E. L.

Goldstein and Eggers & Co. severally filed interventions setting forth these facts, and also averring that the property attached was only sufficient to satisfy the plaintiff’s claim, and also charging that the plaintiff’s demand was not due at the time he commenced his action, and also that he had no valid demand against the defendants, and that his action was prosecuted for the purpose of hindering and defrauding creditors of the defendants. A general demurrer was interposed to these complaints of intervention; that is, that the facts set forth do not constitute a cause of intervention.

The demurrer was overruled, and then the plaintiff answered the interventions, and upon the action coming on for trial, after the intervenors had made proof of their attachment proceedings, and the plaintiff had shown the default of the original defendants, each party moved the Court for judgment in his favor, without giving further evidence, and thereupon the Court found in favor of the plaintiff against the defendants and in favor of the intervenors against the plaintiff, and adjudged that the plaintiff recover the amount of his demand against the defendants, and that his attachments be set aside, and that the Sheriff pay over the money in his hands to the intervenors pro rata.

From this judgment the plaintiff appeals. The two main points presented are: 1st. Whether the facts show a case for a proceeding by intervention; and 2d, whether the onus probandi was on the plaintiff to prove his cause of action as between him and the intervenors, or on the intervenors to prove their cause of action against the plaintiff. The provisions of the Practice Act relating to interventions were not a portion of the system of proceedings in civil cases as originally enacted, but were adopted in 1854 from the laws of Louisiana.

In a case like the present, before the introduction of these provisions, and as doubtless may still be done, the proceedings would have been by a separate action in the nature of a bill in chancery, as in the case of Heyneman v. Dennenberg, (6 Cal. 376) or by motion to the Court, as in the case of Dixey v. Pollock (8 Id. 570). But in the case of Davis v. Eppinger, (18 Id. 378) where the facts were like those in this case, it was decided to be a proper case for intervention.

Although the intervenors have not a claim to or lien upon any property which is the direct subject of litigation in this action, they have a lien upon property which is held subject to the results of the litigation, and which would be lost to the intervenors if the original action should proceed to judgment and execution. If the case does not fall within the precise definition of the cases in which intervention takes place, as given in

section six hundred and fifty-nine, and as explained in the case of Horn v. Volcano Water Works, (13 Cal. 62) it is substantially within the object provided for by that section, and as that is a law only regulating modes of procedure and not affecting rights of property, we think the

interpretation given to it in the case of Davis v. Eppinger should not be changed. The second point, we think, is also controlled by the decision which establishes the right to intervene. The ground upon which the intervenors are allowed to become parties to this action is, that by reason of their lien upon the property attached, they are interested in preventing the plaintiff recovering a judgment.

They are for this purpose defendants in the action, and as the allegations in their complaint, aside from those made for the purpose of showing their right to intervene, are in effect a denial that at the time the plaintiff brought his action and attached the property he had any cause of action, in order to obtain a judgment, so far as they were interested, after they had proved the facts alleged to show their right to intervene, he was required to prove his cause of action. Although in the case of Davis v. Eppinger and in the case of Horn v.

The Volcano Water Co. (13 Cal. 70) it was decided that judgment might be rendered against the original defendants, it was because under our system the Court by its judgment can make various dispositions to meet all the exigencies of the case, and thus allow the plaintiff to recover a judgment against those defendants and at the same time control the judgment so far as it would affect the intervenor’s liens upon the property.

The objection that the judgment should not have directed the money in the Sheriff’s hands to be paid to the intervenors pro rata, cannot avail the appellant, because it is a matter in which he is not interested, and those who are interested in it have not appealed. But a judgment having been rendered for the plaintiff against the original defendants, that portion of the judgment which sets aside the plaintiff’s attachment absolutely was erroneous. It should only have been postponed to those of the intervenors. In this respect the judgment must be modified.

The record in this case appears to have been made up amicably between the attorneys, and some of its defects supplied by stipulations, and neither in the grounds of error or in the briefs is any distinction taken between the cases of the intervenors, although there appears to be a difference which might have required a medication of the form of the judgment, but not in a matter affecting the substantial rights of the plaintiff, who alone has appealed.

The cause must be remanded to the Court below, with directions to modify the judgment by striking out that portion which directs the attachment of the plaintiff to be set aside, and by directing the money in the Sheriff’s hands to be applied first to the payment of the judgments of the intervenors pro rata, and the surplus, if any, to the payment of the plaintiff’s judgment. Each party to pay his own costs on appeal.