Opinion
November, 1893.
McGuire Low, for plaintiff (respondent).
Barnum Rebhann, for defendants (appellants).
This is an action of replevin commenced by plaintiff against the defendants Luengene and Richard Roe to recover possession of certain furniture which plaintiff alleges he is the absolute owner of, and which is in the possession of Luengene, who refuses to return it to plaintiff. There is no claim that Richard Roe was intended to represent any one in the matter whose name was unknown or who had any interest in the litigation. The plaintiff, by virtue of sections 1694 to 1699 of the Code of Civil Procedure, required the sheriff to replevy the furniture, giving the undertaking according to section 1699 for the return of the property to defendants Luengene and Roe, if possession thereof is adjudged to them, or if the action abates or is discontinued, and for the payment of damages awarded to them. The sheriff took possession of the furniture, and thereafter one John H. Seed, not a party to the action, made the usual claim upon the sheriff for the property, according to the provisions of section 1709, who refused to deliver up the same to either Seed or the plaintiff, and Seed then commenced an action against the sheriff therefor. Thereafter the plaintiff applied for and secured an order ex parte, making Seed a party defendant, on the ground that he claimed some interest in the property. The amended and supplemental complaint is the usual one in replevin against defendant Luengene, the allegations of which have no reference to Seed, except that the fourth clause alleges "That the defendant, John H. Seed, claims some interest in the foregoing goods and chattels." Seed moved to vacate the order making him a party, and from the order denying the same this appeal is taken. Before Seed was so made a party defendant this was an action at law to determine the alleged controversy as to whether the plaintiff was entitled to possession of the property as against Luengene. If section 452 of the Code of Civil Procedure only applies to those actions which were formerly known to the pleader as suits in equity it will not help the defendant in his contention. But, even if it does apply to actions at law, the first clause thereof does not authorize the order making Seed defendant, for a complete determination of the controversy between plaintiff and defendant Luengene could have been had without the presence of Seed or affecting his rights. The second clause thereof would not authorize the plaintiff to make the application, but it is a provision for the express purpose only of enabling the person not a party to make it.
These views seem to be fully sustained by Chapman v. Forbes, 123 N.Y. 532, 538-540.
We think the order making Seed a party ought to be reversed, with ten dollars costs and disbursements to be taxed, and motion granted, with ten dollars costs.
CLEMENT, Ch. J., concurs.
Ordered accordingly.