Bechtel v. Axelrod

CURTIS, J.

Having foreclosed a deed of trust given as security for a promissory note, the plaintiff commenced this action against the defendants Axelrod and Rosenthal to obtain a deficiency judgment. The defendant Axelrod had executed the note as an accommodation maker for the benefit of the defendant Rosenthal. The wife of the defendant Axelrod intervened seeking a declaration that their community property could not be subjected to payment of the obligation since it had been incurred by her husband solely as an accommodation maker and without her knowledge and consent. The trial court found that no evidence was offered as to whether the intervener and her husband owned any community property, and that no evidence was introduced as to whether the plaintiff intended or threatened to levy execution upon any community property to satisfy the judgment against the defendant Axelrod. For these reasons the trial court concluded that the intervener had no interest in the proceedings. From the judgment entered in favor of the plaintiff on the issue of intervention, the intervener brought this appeal upon the judgment roll.

Assuming for the purposes of this discussion that under the allegations of the intervention pleadings it may be accepted as a fact that the intervener and her husband the defendant Axelrod, owned community property and that the plaintiff intended to satisfy his judgment out of it, the determinative question is whether the wife in these circumstances has such “an interest in the matter in litigation” as to entitle her to

[392]

interject her claim in this action under the terms of section 387 of the Code of Civil Procedure. That section provides in part as follows: “At any time before trial, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding.” The import of this language has been the subject of frequent comment in numerous decisions of the appellate courts of this state.

In

Elliott

v.

Superior Court,

168 Cal. 727 [145 Pac. 101], it was declared at p. 734: “The interest mentioned in the code which entitles a person to intervene in a suit between other persons must be in the matter in litigation and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment.” In