Van Gorden v. Ormsby Bros.

Day, J". i practice: l?ghtseoffe1011' 111 ervenor. I. The intervenors appeared in a law action and tendered an equitable issue, and asked that a new party be ma<le to the record. They procured an order transferring the cause to the equity docket, con-tinuing it, requiring the plaintiff to answer their petition within thirty days, and setting the cause down for trial upon depositions as an equitable action. These several rulings are clearly erroneous. Section 2681 of the Code provides : “ The Court shall determine upon the intervention at the same time that the action is decided, and the intervenor has no right to delay.” An intervenor cannot be allowed to tender an issue which can be tried only by a change in the form of proceeding and a continuance of the cause for testimony. If the person intervening has rights which require protection, and which cannot be determined by intervention in the main action without delaying the trial, he ought not to intervene, but should commence an original action, and, if need be, and a proper case therefor can be made, protect his interests by injunction. The impropriety and injustice of the course pursued in the present case are very apparent. The plaintiff claims to be the owner of the property in question. From the petition of the intervenors it is apparent that she is the owner, unless a fraudulent transfer to her of the real estate in question can be established. Yet by the order of the Court she has been summarily deprived of the use of this property, certainly for six months, and very probably for a longer period, without any bond of indemnity or source of redress if she shall ultimately prove to be the equitable as well as the legal owner of the property. The intervenors should have commenced an original action in equity to set aside the conveyance to plaintiff by her husband, aiding this action by an injunction, if they could make a proper case therefor, preventing the payment to plaintiff of the proceeds of the sale of the land until their rights could be determined. The plaintiff would thus be indemnified against loss. In transferring the issue presented by the intervenors to the [665] equity docket, aud continuing it for trial, against the objection of the plaintiff, the court erred. II. The money having been paid into court by the defendants, Ormsby Bros. & Co., pursuant to the order of the court, the court ought not then to have rendered judgment against them for a portion of the money so paid in. III. The court' found that the plaintiff was entitled to $366.20. No one disputes the plaintiff’s right to this portion of the money paid into court by the defendants. It was therefore clearly erroneous for the court to order the clerk to pay this sum back to the defendants. The defendants make no claim to the money. They simply ask that the court shall determine to whom the money shall be paid. IY. As the case stood in the court below the plaintiff was entitled to the money. Unless the intervenors shall, in a proper equitable proceeding, obtain an order preventing the payment of the money to the plaintiff, an order should be made directing that the money be paid to plaintiff, and the garnishee be discharged. Upon the plaintiff’s and defendants’ appeal the judgment of the court below is, at the costs of the intervenors, Beversed.