Dietrich v. Steam Dredge & Amalgamator

De Witt, J. We will first examine the notice of appeal, and ascertain what is before us. In the notice it is stated that the appellant appeals from the order of the court refusing to open the default, and refusing to allow the Commercial National Bank to intervene. These orders were made September 13, 1892, upon a motion made June 23, 1892. These were special orders, made (September 13th) after final judgment, which was entered June 18th. An appeal from a special order made after final judgment must be taken within sixty days. (Code Civ. Proc., § 421.) This appeal was taken February 1, 1893, which was much more than sixty days after September 13th, the date of the orders. Therefore, as contended by respondent, the appeal from the order refusing to open the default and allow the bank to intervene is not before us for review. We cannot, therefore, inquire into the merits of the application to intervene. Looking further into the notice of appeal, we find that it purports to appeal from some orders which are not appealable, but we think it is fairly construable as an appeal from the judgment. It appeals from “the order and judgment entering judgment.” To state that an appeal is from a “judgment entering judgment” is not apt or well-chosen language, but we are of opinion that the intention is expressed to appeal from the judgment, and that we should so construe it. On the appeal from the judgment we may examine the action of the court as to the alleged demurrer of the Commercial National Bank. It is observed by the record that the court did not overrule the alleged demurrer, but, on the contrary, ignored it altogether, treated it as naught, and rendered judgment as if there were no demurrer filed, and upon the theory that the defendant was in default. It is clear that the defendant itself, the alleged boat, did not appear, answer, or demur in this case. Its default was entered after the time for appearing expired, and judgment was rendered against it. But was the filing by [267] the Commercial National Bank of the demurrer an appearance of the defendant boat? Section 216 of the chapter of the Code of Civil Procedure, upon the “Attachment of Boats,” provides that “any person, master, agent, clerk, consignee, or other person interested in the boat, may appear by himself, his agent, or attorney, for the defendant, and conduct the defense of the suit.”’ The bank, in its demurrer, states that it has an interest in the boat as a creditor, but the bank does not appear for the defendant. It appears for itself. The demurrer states that it is the bank that demurs. The attorneys sign the demurrer as attorneys for the bank, and not for the defendant. The appeal to this court is taken by the bank, and not by the defendant. "Whatever the bank attempted it attempted for itself. It is a creditor trying to get security on the boat, and not a friend of the boat, attempting to defend it. Indeed, the whole contention of the bank in this case is, not that the boat or the owners thereof are aggrieved, but that the bank is injured, and seeks redress by appeal. Therefore, the attempted appearance being by the bank for itself, and not for the' boat, and the boat not having appeared in the case below, judgment was properly rendered against it. Therefore, taking the ground, as the record shows is the fact, that the bank acted for itself in filing the demurrer, did it thus get into court and the case, and become a party to this action? It was not a party when the complaint was filed and the summons issued. It did not become a party by intervening, as permitted by the Code of Civil Procedure, section 24. It was not brought into the case by the court in pursuance to section 26 of the Code of Civil Procedure, nor by the provisions of section 27. If the bank ever became a party in this case, it became so simply by filing the demurrer. But we do not understand what authority it had to file that alleged pleading. The person who may demur to a complaint is the defendant. (Code Civ. Proc., § 87.) The bank was not a defendant. Indeed, the bank neither is now, nor ever was, a plaintiff or a defendant or an intervenor. It is an outsider as to this case. It may be conceded, in this discussion, that the facts were such that the bank could have become an intervenor by properly proceeding [268] in time under the provisions of section 24 of the Code of Civil Procedure. That section (24) is as follows: “Any person may, before the trial, intervene in an action or proceeding who has an interest in the matter of litigation in the success of either of the parties, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding any thing adversely to both the plaintiff and defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court, and served upon the parties to the action or proceeding who have not appeared, and upon the attorneys of the parties who have appeared, who may answer or demur to it as if it were an original complaint.” It is observed that this statute provides how a person may come into a case who has an interest in the litigation, or in the success of either of the parties, or against both. He may not come in of his own motion or “of course.” He must make a showing by complaint. He must have leave of court to file the complaint. That pleading must be served upon the other parties, who may answer or demur; and the court must determine whether a proposed intervenor may come into the case. But this bank ignored all these rules of practice and statute. Being an outsider and stranger to the suit as commenced, it never asked leave of court to come into the case. It never presented any complaint to which the parties already in could have demurred or answered. It never gave the court opportunity to determine whether it had a right to intervene. But it steps into the case with its demurrer, and says that it has an interest in the litigation; and this statement, by itself, it determines for itself, in its own iavor. It comes into the case “of course,” and upon its own motion, and without leave. It is clear that section 24 provides that the court, and not the intervenor, determines all these matters. Under these views, we are of opinion that the district court committed no error when it simply disregarded the demurrer filed by the bank, and entered judgment for plaintiff. t [269] Some very important questions have been argued in this case; for example, as to whether the alleged boat was, under the allegations of the complaint, a boat, and whether a cause of action was shown as to the claims which were assigned to plaintiff. The constitutionality of the statute (title 7, c. 5) is also questioned. But it appears that we have no jurisdiction of this appeal. We have no jurisdiction to open the default and allow intervention, because, as shown above, that appeal was not taken within the time prescribed by statute. (Code Civ. Proc., § 421.) Again, we have no jurisdiction to disturb the judgment, because no person who was ever a party thereto has appealed. We see no other course but to dismiss the appeal, and it is accordingly so ordered. Pembekton, C. J., and Harwood, J., concur.