Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Granted 21 Cal. 280 at 288.
Appeal from the Sixth Judicial District.
On the tenth day of January, 1861, appellant, Morris Speyer, commenced a suit against Ihmels & Co. in the District Court, Sixth Judicial District, for the sum of $ 5,400, claimed to be due on an account for goods sold, and caused an attachment to be issued and levied by the Sheriff of Sacramento County on property of the defendants in that county. On the same day, and immediately after the commencement of the suit of Speyer, the intervenors, Eggers & Co., also commenced an action against the same defendants for $ 8,500, issued an attachment therein, and had it levied upon the same property. On the ninth of January, 1861, the intervenor, E. L. Goldstein, commenced an action against the same defendants in the Twelfth District Court to recover the sum of $ 8,450, and caused an attachment to be issued therein directed to the Sheriff of the City and County of Sacramento, who levied the same upon the property previously attached.
The defendants made default in all of these actions. On the nineteenth day of January, 1861, the intervenors, Goldstein and Eggers & Co., filed in the Sixth District Court, in the case of Speyer v. Ihmels & Co., bills of intervention, under the six hundred and fifty-ninth section of the Practice Act, alleging: 1st. That the intervenors were creditors of the defendants for the respective amounts due them, and had caused attachments to be issued and levied upon their property subsequent to the attachments of Speyer; 2d, that Ihmels & Co. were insolvent; 3d, that the claim and demand upon which suit of Speyer is based, is not a joint or partnership debt against defendants, but an individual debt due from one Stockfleth, a member of the firm; 4th, that the pretended claim of Speyer was not due, and no right of action had accrued thereon at the commencement of his action; 5th, that no goods, wares, or merchandise were ever sold or delivered by the plaintiff to defendants as charged in his complaint; 6th, that Speyer's claim was brought forward and his action commenced and prosecuted by a collusion between him and the defendants, for the purpose and with the intent to defraud the creditors of defendants, including the intervenors.
The intervenors prayed that the attachment of plaintiff, so far as the rights of the intervenors were concerned, be set aside and dismissed, and that they be adjudged entitled to the money in the hands of the Sheriff collected upon the sale of the property, and that the Sheriff be directed to pay the same to them pro rata. To these pleadings of the intervenors plaintiff demurred, and the demurrer being overruled, filed answers denying all their allegations of fraud. The case was submitted to the Court, a jury being waived. The plaintiff read his complaint, and after proving that he had asked the Clerk for a judgment against said defendants by default, and that the Clerk had refused to enter it, rested.
The intervenors then read their bills of intervention, and introduced in evidence the attachment papers in their respective cases and the Sheriff's return upon their writs, and also the judgments recovered in said actions for the amounts sued for, and rested.
The plaintiff introduced no further proof. The Court rendered judgment in favor of the plaintiff, and against the defendants, for the amount sued for; and in favor of the intervenors so far as to set aside and discharge the plaintiff's attachment, and to order the Sheriff to pay to them the money in his hands. From this judgment the plaintiff appeals.
COUNSEL:
I. The demurrer to the bills of intervention should have been sustained. The petitioners simply show that they were contract creditors. In the language of this Court in the case of Horn v. The Volcano Water Company et al., (13 Cal. 69) the intervention " is only an attempt of one creditor to prevent another creditor obtaining judgment against the common debtor." Our statute very plainly and distinctly points out in what cases a party may intervene. It says: " A party shall be entitled to intervene in an action who shall have an interest in the matter in litigation." (Pr. Act, sec. 659.) Now what is the matter in litigation in the present case? It is simply whether the plaintiff shall have judgment for his debt. The intervenors have no interest in that question within the meaning of the statute. If this were a replevin suit, or any other kind of suit by which plaintiff sought to obtain possession of certain specific property, a party upon making a proper showing might intervene. It was for such a class of cases only that the statute intended to provide. (Gasquet v. Johnson, 1 Louisiana, 431.) Would the intervenors gain or loseby the direct legal effect of the judgment? Certainly not. In Horn v. Volcano Water Co. this Court use the following language: " 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 or lien upon the property, or some part thereof, which is the subject of litigation." Now did the intervenors " have a claim to the demand?" This is not pretended. Did they have any claim to or lien upon the property which was the subject of litigation? Certainly not. There was no property in litigation as between Speyer and his debtor, Ihmels & Co. The only question in dispute was, did Ihmels & Co. owe Speyer so much money, in which the intervenors had no such interest as would allow them to intervene?
II. The Court erred in setting aside Speyer's attachment, and ordering the proceeds of the property attached to be paid over to the intervenors. The affirmative was not on Speyer. The bill of intervention is treated by our statute and the decisions of our Courts as a complaint. (Prac. Act, sec. 661; People v. Talmage , 6 Cal. 256.) At the time of trial both parties stood on an equal footing--neither partyoffering any evidence. It is true the intervenors had their judgments. Speyer did not have his judgment for the reason that the Clerk refused to enter it up. The intervenors introduced no evidence to support any one of the allegations in their complaint of intervention; the Court had no more right to presume against the bona fides of our claim than that of the intervenors. To the bill of intervention Speyer filed his answer denying all their charges of fraud, etc. It was necessary for the intervenors to allege certain facts in order that they might gain a status in Court. It was certainly necessary then for them to substantiate those facts in order to maintain that status. If it was necessary for them to allege those facts it certainly was necessary for them to prove them. The intervenors had the affirmative of the issue before the Court, and the onus probandi was on them. (1 Greenl. Ev. sec. 74.) The intervenors ground their right upon an affirmative allegation of fraud and collusion; that they must prove for the law never presumes fraud. (Id. sec. 80; Ford v. Metayer, 10 Martin, 436; Turnbull v. Martin, Id. 419; Philips on Evidence, C. & H. Notes, 3d ed. 641, 649, 652; 18 Johns. 403; 1 Washington, 306, 330; 7 Cow. 701.)
F. Hereford, for Appellants.
Geo. R. Moore and E. B. Crocker, for Respondents.
I. Respondents had a right to intervene. (Davis v. Eppinger , 18 Cal. 378; Brooks v. Hager , 5 Id. 281; Yuba County v. Adams & Co. , 7 Id. 35; Dixey v. Pollock , 8 Id. 570; Horn v. Vol. Water Co. , 13 Id. 68.)
II. We deny in our petitions of intervention that the plaintiff ever sold or delivered any goods, etc., to the firm of Ihmels & Co., or that they are indebted to him jointly in any amount whatever, but, on the contrary, we aver that all of the plaintiff's transactions were with Stockfleth, one of the partners, individually, and that he alone is liable. Here is a distinct issue of fact for the Court to determine; and unless the plaintiff can show that he did sell and deliver goods, etc., to the firm, he cannot recover in this action, and, of course, would not be entitled to the partnership assets. If it were true that the plaintiff sold these goods to the firm of Ihmels & Co., he could easily have shown that fact, while it would have been the next thing to impossible for us to have shown that he did not. The true rule is, that an intervenormust establish the affirmative allegations in his bill, as against either party, but when he " unites with the defendant in resisting the claims of the plaintiff," and denies the averment in the plaintiff's complaint, he stands with and to this extent occupies the place of the defendant, and with respect to these issues, the plaintiff must make out his case affirmatively or he will fail. The language of the statute clearly fixes the relative positions of the parties. The intervenor may " unite with the defendant in resisting the claims of the plaintiff." That is, he may become a defendant in the intervention, and then, of course, he will occupy the same position with respect to the plaintiff as any other defendant occupies, and it would be a radical change, indeed, in the practice to hold that a plaintiff should not be required to make out an affirmative case when each averment in his complaint is specifically denied.
In Louisiana, where the statute is very similar to ours, the Courts hold that bills of intervention, so far as they traverse the complaint, must be regarded like the answer of a defendant, and put in issue the plaintiff's allegations. (Neal v. Fesperman, 1 Jones, [La.] 446.)
This Court took the same view in the sase of Horn v. The Volcano Water Co. et al. (13 Cal. 70). In that case the Court said: " Looking, then, to the position of these judgment creditors, and treating it as an answer to the complaint, and the parties as asserting a priority in the liens of their several judgments over the lien of the mortgage," etc.
In the case of Davis v. Eppinger (18 Cal.)--Kloppenstein intervening--which was similar in all of its material parts to the case at bar, this Court held substantially the same rule. (See, also, 1 Greenleaf's Ev. sec. 74; C. and H. notes to Phillips Ev. 810.)
JUDGES: Norton, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
NORTON, Judge
On rehearing Norton, J. delivered the opinion of the Court. Field, C. J. concurring.
We granted a rehearing in this case principally for the purpose of considering whether our decision might not be modified so as to allow the parties a new trial. The merits of the case were not investigated, and as this was occasioned by an uncertainty as to the proper mode of proceeding under the anomalous provisions of the Practice Act relating to interventions, we think there should be a new trial. In other respects we adhere to our opinion as heretofore expressed.
The judgment is, therefore, reversed and the cause remanded for a new trial. The costs of this appeal to abide the event.