Henry, Lee & Co. v. Cass County Mill & Elevator Co.

Day, J. The right to intervene is purely a statutory right, and it must be exercised at the time, and in the manner, the statute prescribes. Sections 2683 and 2684 of the Code provide: “Any person who has an interest in the matter in litigation, in the success of either of the parties to the action, or against both, may become a party to an action between other persons, either by joining the plaintiff in claiming what is sought by the petition, or by uniting with the defendant in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the cause and before the trial commences. The court shall determine upon the intervention, at the same time that the action is decided, and the' intervenor has no right to delay.” 1. contract: agreement to settie:verdict. 2.___:___intervention. The intervention must be made before the trial commences. After the verdict all would admit it would be too late to intervene. But a voluntary agreement of the parties . Vo r stands in the place of a verdict, and, as between the parties to the record as fully and finally determines the controversy as a verdict could do. The agreement puts the case exactly in the attitude of one in which a verdict has been returned. In either case nothing remains but the final judgment of the court. It is not the intention of the statute that one not a party to the record shall be allowed to interpose and [36] open up and renew a controversy which has been settled the parties to the record, either by verdict or voluntary agreement. This is evident from section 2684, which provides that the court shall determine upon the intervention at the same time that the action is decided. When a verdict has been returned, or the parties have agreed upon the judgment to be entered, then the action has been decided, and it is too late to entertain the claim or determine the rights of an intervenor. The record shows that at the February Term, 1874, of the District Court, the intervenor knew that this action was pending in the name of Henry, Lee & Co. The agreement of settlement was not filed until the February Term, 1875. The intervenor had ample time to present his petition before the controversy was'concluded by settlement. Not having done so, if he has any independent rights he must present and prosecute them by an original action. He has permitted the time of availing himself of the right to intervene to pass by. The court erred in overruling the motion to strike the petition of intervention from the files, and in refusing to enter judgment upon the agreement of the parties to the record. Reversed.