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others stands upon a different footing. It shows that they were judgment creditors having liens by their several judgments upon the mortgaged premises at the time of the institution of the suit. As such, they were subsequent incumbrancers and necessary parties to a complete adjustment of all the interests in the mortgaged premises, though not indispensable parties to a decree determining the rights of the other parties as between themselves. For such adjustment the court would have been justified in ordering them to be brought in, either upon their own petition, as in the present case, or by an amendment to the complaint." 1

§ 430. The doctrine thus stated by Mr. Justice Field is clearly the correct interpretation of the provisions contained in the Cali

intervenor cannot assail the sufficiency of the plaintiff's attachment proceedings. Curtis v. Curtis, 3 Louis. 513, 515. In partition between co-owners, a third person claiming to own the entire property in opposition to all the other parties cannot intervene to establish his title. Field r. Mathison, 3 Rob. 38; Tutorship of Hackett, 4 Rob. 290, 296; Harrod v. Burgess, 5 Rob. 449; Whittemore v. Watts, 7 Rob. 10; West v. His Creditors, 8 Rob. 123; Jones v. Jenkins, 9 Rob. 180; Succession of Baum, 11 Rob. 314, 822; Hazard v. Agricultural Bank, 11 Rob. 325, 336. When property of the defendant is attached or otherwise seized in the suit, third persons claiming to own it, or to have a prior lien on it, may intervene. See Yale v. Hoopes, 12 La. An. 460; Danjean v. Blacketer, 13 La. An. 595; Gaines v. Page, 15 La. An. 108; White v. Hawkins, 16 La. An. 25; Yale v. Hoopes, 16 La. An. 311; Letchford v. Jacobs, 17 La. An. 79; Ledda An. 314; Field v. v. Maumus, 17 La. Harrison, 20 La. An. 411; Fleming v. Shields, 21 La. An. 118; Beckwith v. Peirce, 22 La. An. 67; Michel r. Sheriff, &c., 23 La. An. 53. But such intervenor cannot dispute the regularity of the attachment proceedings. Yeatman v. Estill, 3 La. An. 222; Fleming v. Shields, 21 La. An. 118. And when the attached property has been released on a bond, a third person cannot intervene to claim it. 1 Horn v. Volcano Water Co. 13 Cal. Wright v. White, 14 La. An. 590; Burbank 62, 69, per Field J.

v. Taylor, 23 La. An. 751. In actions to establish title, and to recover possession of land or chattels, third persons claiming to be owners as against both plaintiff and defendant may intervene. This is a very common form. See Haydel v. Bateman, 2 La. An. 755; Phelps v. Hughes, 1 La. An. 320, 321; Gibson v. Foster, 2 La. An. 503, 504; Baldree v. Davenport, 7 La. An. 587; Levy v. Weber, 8 La. An. 439; McCoy v. Sanson, 13 La. An. 455; Brown v. Brown, 22 La. An. 475. In actions on contracts, persons claiming a total or partial interest in the recovery; and, in actions to reach a fund, persons claiming a prior lien on or interest in the same property. O'Brien v. Police Jury, 2 La. An. 355; Dubroca v. Her Husband, 3 La. An. 331; Moran v. Le Blanc, 6 La. An. 113; Bedell's Heirs v. Hayes, 21 La. An. 643; Walker v. Simon, 21 La. An. 669; Taylor v. Boedicker, 22 La. An. 79. The following are miscellaneous cases: Erwin v. Lowry, 1 La. An. 276, 278; Devall v. Boatner, 2 La. An. 271; Thompson v. Mylne, 4 La. An. 206; ib. 212; Union Bank v. Bowman, 15 La. An. 271; Clapp v. Phelps, 19 La. An. 461; Cobb v. Depue,

22 La. An. 244; Merritt v. Merle, ib. 257; State v. Dubuclet, ib. 365; Aleix v. Derbigny, ib. 385; Cleveland v. Comstock, ib. 597; State v. Graham, 23 La. An. 402; Moreau v. Moreau, 25 La. An. 214.

fornia and the Iowa codes, and the opinion of Mr. Justice Dillon is in complete harmony with it. The cases cited above all fall within this doctrine. In each the intervenors had a direct interest, either in prosecuting the action and obtaining the benefit of the recovery, or in defending the action and entirely defeating the recovery. If the intervenor claims to be the only one entitled to the relief, if he asserts that the ultimate cause of action is vested in him and not in the original plaintiff, then his interest is adverse to both of the parties. The doctrine may be expressed in the following manner: The intervenor's interest must be such, that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought; or if the action had first been brought against him as the defendant, he would have been able to defeat the recovery in part at least. His interest may be either legal or equitable. If equitable, it must be of such a character as would be the foundation for a recovery or for a defence, as the case might be, in an independent action in which he was an original party. As the new system permits legal and equitable causes of action or defences to be united by those who are made the parties to an ordinary suit, for the same reason either or both may be relied upon by an intervenor. In short, the same rules govern his rights which govern those who originally sue or defend. The proceeding by intervention is not an anomalous one, differing from other judicial controversies, after it has been once commenced. It is, in fact, the grafting of one action upon another, and the trying of the combined issues at one trial, and the determining them by one judgment. In this aspect of the proceeding, it is both plain and reasonable that the intervenor should not be required to apply for permission to come in. He brings himself into court, and becomes a litigant party by filing and serving his petition, which is answered by the adver sary parties-plaintiff or defendant, or both in the same manner as though it was the pleading of a plaintiff: the issues are thus framed, -issues upon the plaintiff's petition and the intervenor's petition, — and the trial of the whole is had at one hearing. If the intervenor fails on this trial, a judgment for costs is of course rendered against him; if he succeeds, a judg

ment is given in his favor according to the facts and circumstances of the case.1

§ 431. This is certainly a great innovation upon the procedure which has hitherto prevailed in courts of law and of equity. It is, however, a method based upon the very principles which lie at the foundation of the entire reformed American system. The only possible objection is the multiplication of issues to be decided in the one cause, and the confusion alleged to result therefrom. This objection is not real: it is the stock argument which was

to the attachment, and have it set aside if void as against them. Davis v. Eppinger, 18 Cal. 378, 380; and see Dixey v. Pollock, 8 Cal. 570. And, in such a suit, a subsequent attaching creditor may intervene, and show that the first attachment was wrongly issued, because there was, in fact, no debt due from the defendant to the plaintiff therein, and may have its lien postponed to that of his own attachment. Speyer v. Ihmels, 21 Cal. 280, 287; Coghill v. Marks, 29 Cal. 673. In an action against a sheriff for wrongfully seizing the plaintiff's property on execution against another, the person who indemnified the sheriff may intervene, and make himself a party on the record, and defend in the place of the defendant, the sheriff. Dutil v. Pacheco, 21 Cal. 438, 442, per Norton J. If an action is brought to foreclose a mortgage which is barred by the statute of limitations, a subsequent

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These remarks apply in their full extent only to the Iowa system, since by the last revision of the California code an intervenor must obtain leave of the court to file his complaint. Where an intervention is adverse to both plaintiff and defendant, the issues raised by it must be tried and decided, whatever disposition may be made of the issues between the original parties. If the plaintiff is nonsuited on the trial, the intervention is not thereby dismissed, but its trial must go on until a decision in it is reached. Poehlman v. Kennedy, 48 Cal. 201. The following cases show the circumstances under which the doctrine has been applied by the courts of California. A third person, to whom the cause of action has been transferred pendente lite, or who is directly interested in the subject-matter, may intervene before or after the issue is joined. Brooks v. Hager, 5 Cal. 281, 282. In an action to foreclose a mortgage given on a purchaser or incumbrancer of the land homestead, the wife of the mortgagor may may intervene, and set up the statute as a intervene. Sargent v. Wilson, 5 Cal. 504, defence. Coster v. Brown, 23 Cal. 142, 143. 507; Moss v. Warner, 10 Cal. 296, 297. An action being brought by the assignee When the State was the plaintiff seeking of a thing in action, the assignment of to recover moneys belonging to it, a third which was absolute on its face, the asperson intervened, and set up a claim to signor intervened, alleged that he owned the same money, growing out of the three-fourths of the debt, and prayed transaction which was the foundation of judgment in his own favor for that the suit; but it was held that the State amount. The intervention was sustained, could not be sued in any form, although and the intervenor had judgment for it was conceded that the intervention three-fourths, and the plaintiff for onewould have been proper between private fourth. Gradwohl v. Harris, 29 Cal. 150, persons. People v. Talmage, 6 Cal. 256, 154. When the court below has granted 258. An intervention is proper by a peran application to intervene, although son having a claim or lien upon the fund after the trial and decision, its act is a of Yuba v. Adams & Co., 7 Cal. 35. In mandamus. People v. Sexton, 37 Cal. which is the subject of the action. County judicial one, and cannot be reviewed by an attachment suit, judgment creditors of 532, 534.

the defendant may intervene, and object

constantly urged in favor of retaining the common-law system of special pleading, and was repudiated when the codes were adopted by the American States, and has been at last utterly repudiated in England. Complicated issues of fact are daily tried by juries, and complicated equities are easily adjusted by courts. The description which I have here given of the enlarged power of intervention admitted by the codes of California and of Iowa, may, by introducing its methods to the profession of other States, procure its general adoption wherever the new procedure is established. Courts and legislatures of the several States may well borrow the improvements which have been made in other commonwealths; and thus, by a comparison of methods, the common system may become perfected and unified.

CHAPTER THIRD.

THE AFFIRMATIVE SUBJECT-MATTER OF THE ACTION: THE FORMAL STATEMENT OF THE CAUSE OF ACTION BY THE PLAINTIFF.

SECTION FIRST.

THE STATUTORY PROVISIONS.

§ 432. I HERE collect all the provisions of the various codes which relate in a general manner to the plaintiff's complaint or petition, and which contain the rules applicable to the theory of pleading as a whole: those which prescribe the mode of alleging certain particular classes of facts, or regulate the joinder of causes of action, or define the nature and uses of the reply, will be quoted in subsequent portions of the chapter, in immediate connection with the several subjects to which they refer. The important. clauses which announce the fundamental and essential principles and doctrines of the reformed system in regard to all pleadings, and which determine the form and substance of the one by which the plaintiff sets forth the grounds of his claim for judicial relief, are nearly the same in the different State codes. With the few variations in the language, which will be pointed out, there is no substantial difference; and the system of pleading, as found in the statute, is absolutely the same wherever the reform prevails. The following are all the provisions which it is necessary to quote in order to exhibit the simple and natural methods introduced by the new procedure.

§ 433. "All the forms [the rules, Ohio, Nebraska, Kansas] of pleading heretofore existing [in actions at law, Oregon] are abolished; and hereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this act." 1 "The first

New York, § 140; Wisconsin, ch. 125, § 1; Ohio, § 83; Missouri, art. 5, §1; Minnesota, § 76; Kansas, § 85; Nebraska, § 90; Indiana, § 47; Kentucky,

§ 116; California, § 421; Florida, § 91;
Oregon, § 62; Dacotah, § 92; North
Carolina, § 91; South Carolina, § 163.
In Indiana, the phrase "inconsistent with

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