LOREN COBURN, Plaintiff, v. JAMES SMART et al., Defendants, and GEO. HEARST et al., Intervenors, 53 Cal. 742

By the Court, Wallace, C. J.: The plaintiff, Coburn, brought this action in replevin against Smart, the defendant, for the recovery of a large quantity of lumber, and at the time of the issuance of the summons he delivered to the Sheriff an affidavit, notice, and undertaking, as provided by secs. 510, 511, and 512 of the Code of Civil Procedure, in proceedings by a plaintiff for claim and delivery of personal property.

Thereupon, the Sheriff took the lumber from the possession of Smart, and the latter, for the purpose of procuring its return to him pending the action, delivered to the Sheriff a written undertaking, executed by the intervenors Hcarst and Pearson, as sureties thereon, to the effect that they were bound in double the value of the property in controversy for the delivery of the lumber by the defendant to the plaintiff, if such delivery should be subsequently adjudged, and for the payment to the plaintiff of such sum as might, for any cause, be recovered against the defendant Smart, as provided by sec. 514 of the same Code.

The defendant filed an answer denying the allegations of the complaint, and the cause was set down for trial on the 5th day of June, 1877, on which day, and before the calling of the cause on the calendar, Hearst and Pearson appeared and presented to the Court their complaint in intervention, and asked leave to file the same, which was refused by the Court. The trial of the cause was then proceeded with, and resulted in an alternative judgment in the usual form in favor of the plaintiff, and against the defendant Smart, for the return of the lumber in controversy, or its value if return could not be had.

Prom this judgment, and from the order refusing their proposed intervention, Hcarst and Pearson bring this appeal.

In their complaint in intervention offered in the Court below, Hcarst and Pearson set forth the proceedings in the action by which they became the sureties of Smart, and alleged that the latter is insolvent, and unable to pay any judgment which the plaintiff might obtain against him, and that Smart was actually in collusion with the plaintiff Coburn in the conduct of the action, and was not making a bona fide defense therein, but proposed and intended to suffer a judgment to be entered against him, and in favor of Coburn, as prayed for in the complaint; and also, that the proposed intervenors had, since the commencement of the action, purchased from the defendant Smart about eighteen thousand feet of the lumber in controversy in the action, and were then in the possession of the same. 1.

The interest of Hearst and Pearson in the success of the defendant is apparent, for by the judgment, if any, to be rendered against Smart, they would not only be concluded as to their title to the eighteen thousand feet of lumber purchased by them of Smart pendente lite, (Brooks v. Hager, 5 Cal. 283) but their liability upon the undertaking given by them in behalf of Smart would become fixed. 2.

Nor do we think that the intervention should have been denied because the application to intervene was not made at an earlier stage of the controversy. ' The statute permits the intervention to be made at any time before the trial. “Any person may, before the trial, intervene in an action or proceeding who has an interest in the matter in litigation,” etc. (Code of Civil Procedure, sec. 387.) Besides, no objection was made below on the ground that the application was too late; the only objection was, that the intervenors “ did not show any right to intervene.” The intervention in this case, though made at the last moment of time permitted by the statute, need not have delayed the cause.

It presented, in reality, no new matter which would have required further preparation on the part of the plaintiff Coburn. The only portion of the complaint in intervention which concerned him was its general denial of the title of the plaintiff to the lumber in controversy, and this was but a repetition of the general denial in the answer of Smart, already on file, and which the plaintiff was bound to meet and overcome, if the pending controversy between himself and Smart was real and not collusive. We are of opinion that the Court below erred in refusing to permit the proposed intervention. 3.

It is claimed, however, by the respondent, that notwithstanding the error of the Court below in the disposition of this cause, the intervenors cannot, under the Code of Civil Procedure, become appellants in this cause.

The intervenors have appealed from the judgment rendered in form against Smart in favor of the plaintiff, and also from the order and judgment denying and refusing their application to intervene in the cause. “ Any party aggrieved may appeal,” etc., (Code of Civil Procedure, sec. 938) “from a final judgment,” etc., (Ibid. sec. 939.) That these appellants are “ aggrieved ” by the judgment rendered against Smart has been seen already, and by “ final judgment,” for they are concluded by the judgment against Smart, mot only as to the personal property bought by them of him pendente lite, but as to their liability as sureties upon the undertaking given in his behalf.

That they are “parties” to the action is equally clear. Their motion to be permitted to intervene, its refusal, and their exception, have made them parties to the record in the technical sense, entitled as such to prosecute an appeal. (People v. Grant, 45 Cal. 97.) The respondent has, since the argument, placed on file his consent that the judgment given below be modified here by excepting therefrom the lumber purchased of Smart by the appellants ; but it is obvious that this would not relieve the latter, as the sureties of Smart, for the return of the remainder of the property recovered in this action.

Judgment against Smart, and judgment and order denying the appellants leave to intervene, reversed, and cause remanded for further proceedings. Mr. Justice Rhodes dissented, and Mr. Justice Crockett expressed no opinion.