Yale v. Hoopes

Spojffoed, J. The plaintiffs upon a money demand against Hoopes, a nonresident, attached certain merchandize, and brought suit praying for judgment against him, with the right of selling the property attached to pay their claim by preference. Seaman, Pecio & Go. intervened, and, alleging that they had sold the merchandize attached to the defendant on a credit, he having promised to furnish them collateral security, which he had failed to do, they prayed: 1st, that the sale from them to Hoopesha avoided, and the goods restored to them; and, 2d, that they be decreed to have the first privilege on the goods as vendors. The counsel for plaintiffs accepted service of this petition in intervention and waived citation on the 28th April, 1865. On the 8th May, 1855, they took a judgment by default against their debtor Hoopes, who had been personally cited on the 25th April, which was duly confirmed (after proof of their demand) on the 15th May, and signed on the 19th May. The intervenors never took any default against the plaintiffs, although they might have done so before the default was taken by plaintiffs against the defendant. There never was any issue joined on the demand in intervention with any party. Indeed, the intervenors seem to have slept over their claim for more than six months without having made any attempt to put it at issue, or to bring it to a trial. It is only cases where issue is joined by answer filed that are required to be fixed for trial; O. P. 4G3. As there never was any issue joined in that mode here, the plaintiffs, who could not be retarded in their suit by intervention, had a right to proceed to the proof of their demand, and thus make the default against their debtor final. With the decision of the main suit the intervention falls. As no issue was joined upon it, the question of the right of the intervenors to a vendor’s privilege has not been passed upon. The proper mode of testing such a question is not by way of intervention but by third opposition. O. P. 395 et seq. The cases of Jones v. Lawrence, 4 An. 279, and Thompson, executor, v. Milne, 4 An. 208, are decisions against the appellants. They have suffered no injury by the conduct of the appellees, who have not taken any advantage, and were not compelled to intervene. Judgment affirmed.